Employee’s purported unresponsive answers to interrogatories used as a defense in disciplinary action

Employee’s purported unresponsive answers to interrogatories used as a defense in disciplinary action

OATH Index No. 876/14

The employer moved to preclude the employee from offering a defense to disciplinary charges based upon employee’s purported unresponsive answers to interrogatories.

OATH Administrative Law Judge Faye Lewis denied the employer’s motion explaining that interrogatories are an extraordinary discovery device, permissible only upon application for good cause shown.*

Under OATH’s rules of practice, the failure to comply with a discovery order may result in sanctions, including preclusion of evidence. Here, however, Judge Lewis found that the employee did not fail to comply with a discovery order. Rather, said the ALJ, the employee voluntarily answered the interrogatories, albeit not to employer’s satisfaction.

* Although Civil Service Law Section §75 does not provide for discovery in connection with a disciplinary hearing, Education Law §3020-a provides for demanding a “bill of particulars”. A contract disciplinary procedure negotiated pursuant to the Taylor Law may provide for “discovery.”

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/14-876md.pdf
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Nonresident attorney's right to practice law in New York State

Nonresident attorney's right to practice law in New York State

Schoenefeld v. State of New York, et al., USCA, 11-4283-cv

The U.S. District Court, Northern District of New York, held that Section 470 of the Judiciary Law, which requires nonresident attorneys to maintain an “office for the transaction of law business” within the state of New York in order to practice in New York courts, places an impermissible burden on Ms. Schoenefeld’s fundamental right to practice law and that the state “failed to establish either a substantial state interest advanced by [the statute], or a substantial relationship between the statute and that interest” [Schoenefeld v. New York, 907 F. Supp. 2d 252, (N.D.N.Y. 2011)].

The State appealed and the U.S. Circuit Court of Appeals, Second Circuit, certified the following question to the State’s Court of Appeals:

Under New York Judiciary Law Section 470, which mandates that a nonresident attorney maintain an "office for the transaction of law business" within the state of New York, what are the minimum requirements necessary to satisfy that mandate?

The Circuit panel retained jurisdiction to decide the case “once we have the benefit of the views of the New York Court of Appeals or once that court declines to accept certification."

The Second Circuit Court’s ruling is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/7ad54af4-96b8-488a-b70c-22bc07f8de82/7/doc/11-4283_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/7ad54af4-96b8-488a-b70c-22bc07f8de82/7/hilite/
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Perceived disability

Perceived disability
Widomski v. Orange County Community College*
Source: Justica Daily Summaries- Education

Plaintiff filed suit against OCCC, alleging claims of discrimination on the basis of a "perceived disability" and retaliation in violation of Title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 et seq.

The district court concluded that plaintiff, who was enrolled in OCCC's medical Laboratory Technology program, failed to establish that OCCC perceived his shaking hands to substantially limit a major life activity, and granted the motion for summary judgment in favor of OCCC as to the ADA discrimination claim.

The district court also granted summary judgment in favor of OCCC on the retaliation claim because plaintiff had not presented any evidence that OCCC's good faith belief that plaintiff had falsified documents was a legitimate, non-discriminatory reason for the disciplinary referral.

The court concluded that plaintiff failed to demonstrate that OCCC perceived him as having an impairment that substantially limited a major life activity; plaintiff failed to demonstrate that OCCC's explanation for its decision to bring disciplinary proceedings against him was pretext for retaliation; and plaintiff's remaining arguments were without merit.

Accordingly, the court affirmed the judgment of the district court.

* USCA, 2^nd Circuit. The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/5e9e16b6-b8c0-43c6-b8d8-4adfffde611b/6/doc/13-1367_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5e9e16b6-b8c0-43c6-b8d8-4adfffde611b/6/hilite/
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Video evidence considered by the administrative law judge presiding at a disciplinary hearing

Video evidence considered by the administrative law judge presiding at a disciplinary hearing
OATH Index No. 266/14

The employee, a maintainer at the Verrazano Bridge, duties include driving tow trucks and assisting disabled vehicles. He was charged with several acts of dangerous and insubordinate behavior, and making false statements.

OATH Administrative Law Judge Alessandra F. Zorgniotti credited a driver’s testimony that the employee tailgated her car, cursed her over a loudspeaker, and threw a water bottle into her vehicle, while he was en route to assist a disabled car.

Based on video footage, ALJ Zorgniotti also found that the employee intentionally caused a wrecker to make contact with a co-worker in order to intimidate him. Even though employee had no prior disciplinary record,

Judge Zorgniotti found that employee’s “reckless and unpredictable behavior renders him unreliable”, and recommended termination of employment.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/14_Cases/14-266.pdf

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No private right of action flows from a mere statement of general policy applicable to all Civil Service employees

No private right of action flows from a mere statement of general policy applicable to all Civil Service employees
Matter of Subway Surface Supervisors Assn. v New York City Tr. Auth., 2014 NY Slip Op 02380, Court of Appeals

The Subway Surface Supervisors Association, representing employees working under the title Station Supervisor Level One (SS-I) commenced a special proceeding against the New York City Transit Authority (TA) alleging that its members were being paid a lower base salary than their claimed counterparts, Station Supervisor Level Two (SS-II), for the same type of work.

The sole allegation in the petition was that the TA violated Civil Service Law §61(2), prohibiting out-of-title work.

The TA moved to dismiss the petition on, among other grounds, failure to state a cause of action. In response, the Union abandoned its §61(2) claim and opposed the TA's motion on new, unpleaded theories, that the TA's conduct violated Civil Service Law §115 and the Equal Protection Clauses of the New York and United States Constitutions.

Supreme Court deemed the §61(2) claim abandoned and, despite the fact that the Union failed to move for leave to replead or to amend its petition to allege the new claims, concluded that the petition stated a "potential" §115 violation, but that "a factual dispute remained" concerning whether SS-Is and SS-IIs performed the same duties. It referred the disputed issue to a special referee for a hearing, but before that hearing could be held Supreme Court granted the TA leave to appeal to the Appellate Division.

A divided Appellate Division affirmed. The majority found that the petition alleged viable Civil Service Law §115 and equal protection claims. The dissenting Justices would have dismissed the petition for failure to state a cause of action because, in their view, §115 enunciated only a state policy and did not confer upon state courts jurisdiction to enforce that policy. The dissenters would have found the Union's Equal Protection Clause arguments to be without merit.

TA then obtained leave to appeal its ruling on the certified question whether the order of Supreme Court as affirmed by the Appellate Division was properly made.

The Court of Appeals held that the order of the Appellate Division should be reversed and “the motion to dismiss the petition granted, and the certified question answered in the negative.”

The court explained that courts of this State have routinely interpreted §115 and its predecessor, the nearly identically-worded former Civil Service Law §37* "a mere statement of general policy applicable to all Civil Service employees" and that is is clear that §115 is a preamble to Civil Service Law Article VIII, and no private right of action flows from it. In contrast, said the court, Article 14 of the Civil Service Law (the Taylor Law) provides the mechanism for represented employees to challenge alleged wage disparities between classifications.

As to the Union’s Equal Protection argument, the Court of Appeals said that the Union's equal protection claims must be dismissed because the Union freely negotiated and executed the collective bargaining agreement that contained lower wage rates for SS-Is and, to the extent an equal protection claim can be raised, it must be asserted by the employees subjected to the alleged discriminatory conduct.

N.B. Justice Rivera issued a concurring opinion commenting stating “I agree that petitioner Subway Surface Supervisors Association's (SSSA) claims under the Federal and State Equal Protection Clauses should be dismissed. However, I disagree with the reasons stated for dismissal of the Civil Service Law §115 claim, and would instead dismiss that claim because SSSA failed to plead its entitlement to relief based on proper §115 equal pay for equal work allegations [and I am writing separately] to present my analysis that §115 sets forth a clear legislative mandate to ensure pay equality for state employees, guaranteed in part by a cognizable private cause of action that allows parties to challenge pay discrimination.”

* See Civil Service Law of 1909, enacted as Chapter 15 of the Laws of 1909.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_02380.htm
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