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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