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Applicant has the burden of proving wrongful denial of employment

By Harvey Randall, Esq.

Applicant has the burden of proving wrongful denial of employment
Francis v City of New York, 15 Misc.3d 1123(A)

Michael A. Francis? application for employment as a New York City Firefighter was rejected by the Department. He sued, claiming that ?his examination results were well above average? as his adjusted final average was 101.921. He also submitted proof of his certification as a New York State Emergency Medical Technician or Certified First Responder.

Although the Department did not provide any reason for its rejection of Francis for appointment as a firefighter, Francis speculated that it ?was the [Department?s] wrongful consideration of his prior criminal record? that was the reason for his disqualification. According to Francis, his criminal record consisted of a single (unspecified) violation that was ultimately dismissed and there ?is no nexus between the alleged criminal conduct and the responsibilities of a New York City Firefighter.?

In rebuttal, the Department argued that Francis did not show that its decision was arbitrary, capricious, an abuse of discretion or made in bad faith and neither Article V, Section 6 of the New York State Constitution nor Civil Service Law Section 61 mandates the selection of the individual with the highest ranking on an eligible list. Further, the Department said that its decision not to appoint Francis was made in accordance with the so-called ?rule of three.? [1]

The Department also contended that ?it is only where the appointing agency provides a reason for its decision that the court may consider same in assessing whether it acted arbitrarily? citing Redman v New York City Transit Authority, 14 AD2d 911. In contrast, argued the Department, ?where, as here, no reason [for its not selecting a candidate] is provided ? the decision of the appointing body may not be disturbed.?

Essentially the Department argued that Francis? petition ?contains no legally sufficient ground for reversal? since it is only Francis? ?conclusory assertion that he was not appointed due to his criminal record? and this representation ?is wholly speculative and not entitled to any weight.?
In deciding in favor of the Department Judge Philip Minardo said:

It is well established that a person whose name appears on an eligible list does not have a vested right of appointment ? ., he or she has no enforceable right to be appointed to an available position;

Examination scores are not intended to be the sole determinant of fitness, as ?the appointing authority must be cloaked with the power to choose a qualified appointee who possesses all the attributes necessary for the responsible performance of his duties;?

Civil Service Law Section 61(1) expressly permits an agency to select any one of the three persons standing highest on the eligible list;

Administrative actions taken arbitrarily or in bad faith will not be tolerated; and

The petitioner in such circumstances bears a heavy burden of proof ? [and] conclusory allegations and speculative assertions will not suffice [to meet this burden].

As the court ruled that Francis? allegation that he was denied appointment due to the agency?s wrongful consideration of a prior criminal record was without any factual basis on the record before the court, his petition was denied and the proceeding was dismissed.[1]

In Matter of Professional, Clerical, Technical Employees Association (Buffalo Board. of Education, 90 NY2d 364, the Court of Appeals upheld the validity of a collective bargaining agreement that provided for appointment pursuant to ?a rule of one? -- the selection of the highest scoring candidate on a civil service examination for appointment to a vacancy.

Full post as published by New York Public Personnel Law on January 31, 2008 (boomark / email).