Train Operator Sues on Threat To Promotion

By GINGER ADAMS OTIS

A Train Operator who says he has been unfairly denied a promotion by New York City Transit filed suit against the agency last week, further alleging in court papers that a transit supervisor threatened to "one-and-three him" if he contacted an attorney about his case.

Joseph P. Branca said in papers filed with the State Supreme Court that he took and passed promotional exam 3509, which qualified him for promotion to Train Service Supervisor.

Missed Days Cited

He was passed over for promotion, although his name remains on the eligible list. After watching several other employees get promoted, Mr. Branca asked an NYC Transit supervisor why he had been overlooked.

According to papers filed by his attorney, Jerold E. Levine, Mr. Branca was told that "his promotion had not been approved due to his sick-time history."

Mr. Levine said in an interview March 15 that a routine investigation turned up several NYC Transit employees who got promoted to Train Supervisor with more absences than Mr. Branca.

Mr. Levine wrote a letter March 7 to NYC Transit's Director of Employment Operations, Marisol Gomez, asking her to issue a written notice within five days stating that Mr. Branca was eligible for promotion, or offer him the promotion.

"It's an issue of similarly-situated employees - you can't promote the first, second and third workers who have sick-time histories and not promote the fourth," said Mr. Levine.

He added that he had been surprised that an NYC Transit supervisor had used the "one-in-three" rule to threaten Mr. Branca if he contacted a lawyer about his lack of promotion.

The one-in-three rule requires city agencies to "consider" the top qualified candidates to fill positions. Applicants who aren't chosen under the one-in-three rule stay on eligible lists, but can't appeal the decision.

"If you one-and-three someone, you're telling them, 'goodbye, you have no appeal,''' said Mr. Levine. "It's effectively disqualifying your application."

Paul Fleuranges, an NYC Transit spokesman, declined to comment, noting that the agency doesn't discuss pending litigation.