The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
This race discrimination case is scheduled to be tried before a jury on September 8, 2009. Plaintiff and defendants have filed numerous pre-trial motions. Oral argument was heard on September 1, 2009. Decision was reserved.
Plaintiff Curtis Brown was appointed as a police officer in the City of Syracuse Police Department on September 6, 1996. He executed the oath of office for this position pursuant to the New York Public Officers Law on the same day. On April 28, 2000, defendant John Falge, Chief of Police, suspended plaintiff with pay based upon evidence he had obtained that, contrary to his denial the previous day, plaintiff had rented a hotel room for a fifteen-year-old female runaway. On May 4, 2000, plaintiff was charged by misdemeanor informations with one count of endangering the welfare of a child and one count of obstructing governmental administration, violations of New York Penal Law sections 260.10 and 195.10, respectively. The Police Department also filed disciplinary charges against him.
On June 20, 2000, plaintiff pled guilty to endangering the welfare of a child in violation of New York Penal Law section 260.10. His guilty plea was in full satisfaction of all of the criminal charges against him. Upon plaintiff's plea of guilty, he was suspended without pay from the Police Department.
The various pretrial motion of the parties will be addressed in turn.
A. Defendants' Motion in Limine (Doc. No. 180)
Defendants seek to preclude testimony or other evidence of police officers who were not similarly situated to plaintiff, "me too" testimony of other City employees, that the crime for which plaintiff pled guilty is anything other than an oath of office offense that disqualifies him from employment as a police officer as a matter of law, and from seeking anything other than nominal damages. As it relates to the expert report of the economic expert Matthew C. McCabe, M.B.A., the motion will be addressed with defendants' motion to strike the expert's report.
The first question that must be addressed is whether the crime to which plaintiff pled guilty was in violation of his oath of office. The answer to this question is an unequivocal yes.
When a public officer is convicted of a crime, an element of which is "knowing or intentional conduct indicative of a lack of moral integrity," he violates his oath of office. Feola v. Carroll, 10 N.Y.3d 569, 572-73 (N.Y. Ct. App. 2008) (citing Duffy v. Ward, 81 N.Y. 2d 127, 134-35 (1993)). When a public officer is convicted of a crime that violates his oath of office, his position is automatically vacated. Id. at 574; Lemieux v. City of Niagara Falls, 138 A.D.2d 945, 945-46 (N.Y. App. Div. 4th Dep't 1988); Pesale v. Beekman, 81 A.D.2d 590, 590 (N.Y. App. Div. 2d Dep't 1981); Hodgson v. McGuire, 75 A.D.2d 763, 763 (N.Y. App. Div. 1st Dep't 1980). As New York's highest court stated, "Public Officers Law § 30(1)(e) is a self-executing statute which provides that an office is deemed vacant upon an officer's 'conviction of . . . a crime involving a violation of his oath of office.'" Feola, 10 N.Y.3d at 572 (quoting N.Y. Pub. Off. Law § 30(1)(e)). "A facial review of the elements of the crime of endangering the welfare of a child under Penal Law § 260.10(1) indicates clearly that it is a 'crime involving a violation of [an officer's] oath of office.'" Id. at 573. Further, because the officer's position is terminated by operation of law upon such a conviction, no due process hearing is required. Id. at 574; Lemieux, 138 A.D.2d at 946; Pesale, 81 A.D.2d at 591; Hodgson, 75 A.D. 2d at 763; see Greene v. McGuire, 683 F.2d 32, 35 (2d Cir. 1982) (finding that after felony conviction, under § 30(1)(e) any property interest in officer's employment was lost so due process was not implicated by failure to rehire after conviction reversed).
Plaintiff argues that it would be unfair to retroactively apply Feola in his case. However, the Feola Court makes clear that the law remained the same since Duffy, and that the appellate court had "misconstrued our holding in Duffy when it concluded that a due process hearing was necessary to establish" if the crime of "conviction amounted to an oath of office violation." Feola, 10 N.Y.3d at 574.
Under Duffy, there are two alternative findings that may be reached. If the officer is convicted of a misdemeanor the elements of which constitute willful deceit, calculated disregard for honest dealings, intentional dishonesty or corruption of purpose, then an oath of office violation has occurred and the position becomes vacant. If, on the other hand, the misdemeanor for which the officer has been convicted is not of such a nature, then the officer is entitled to a hearing on the issue of appropriate discipline, which may include termination. Here, Feola's conviction of endangering the welfare of a child constitutes the former, not the latter.
Id. Thus, what is being applied here is the law as it has been at least since 1993 when Duffy was decided. It is noted that the Second Circuit in this case relied upon the Feola lower court decision of the Appellate Division Second Department which held that conviction of endangering the welfare of a minor is not one that affects the officer's "oath of office" but rather entitles the officer to a due process hearing.*fn1 Brown v. City of Syracuse, 197 Fed. Appx. 22, 25 (2d Cir. 2006) (summary order). This ruling is no longer good law due to the Court of Appeals decision in Feola. See Feola, 10 N.Y.3d at 573 (finding violation of Penal Law § 260.10(1) is a violation of an officer's oath of office). Judge Graffeo, in dissent, disagreed "with the majority that in all instances a conviction under Penal Law § 260.10 implicates a public trust." Id. at 576. She would have required a due process disciplinary hearing which, of course, the majority said was not required. Id. at 574, 576. It is necessary to apply the law as just stated to the facts of this case.
Plaintiff pled guilty to endangering the welfare of a child in violation of Penal Law § 260.10(1) on June 20, 2000. As of that day his position as a public officer was vacated. Feola, 10 N.Y. 3d. at 574. Although under Duffy, decided in 1993, he was not entitled to a hearing on the issue of appropriate discipline, the City accorded him one. See id. Therefore, because his position as a police officer was vacated by operation of law on June 20, 2000, see id. (citing the self-executing statute Public Officers Law § 30(1)(e)), the City's subsequent suspension of him without pay and termination cannot be construed as an adverse employment action because by operation of law he was already terminated. In effect, on June 20, 2000, by pleading guilty to endangering the welfare of a minor in violation of New York Penal Law § 260.10(1), the plaintiff terminated himself as a police officer with the City of Syracuse Police Department. His own act caused him to lose his job. Because his suspension without pay and termination were not adverse employment actions, any occurrences after June 20, 2000, are irrelevant and plaintiff is precluded from adducing at trial any evidence pertaining to after June 20, 2000.
The only remaining activity that could be considered an adverse employment action was his suspension with pay on April 28, 2000, immediately after the incident with the minor, and any subsequent acts by the defendants up to June 20, 2000. Therefore, plaintiff will be permitted to introduce at trial only evidence up to the time his position was vacated upon his plea of guilty to endangering the welfare of a child on June 20, 2000. Additionally, if he has evidence of any damages for that time period he will be permitted to introduce it. However, he is not entitled to any lost earnings because he was paid his salary up until the date--June 20, 2000--his position was automatically vacated by his own action.
With regard to similarly situated police officers and so-called "me too" City employees, the motion is denied without prejudice to make appropriate objections at trial. However, it is noted that "similarly situated officers" only includes those that prior to June 20, 2000, of whose potential criminal conduct--misdemeanor or felony--the Police Department was aware, and the Police Department declined ...