The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
On September 22, 2009, defendants filed a motion for summary judgment. Plaintiff opposed and defendants replied. Also on September 22, 2009, plaintiff Curtis Brown ("plaintiff" or "Brown") filed a motion seeking reconsideration of the Memorandum-Decision and Order filed on September 1, 2009. See Brown v. City of Syracuse, 648 F. Supp. 2d 461 (N.D.N.Y. 2009). Defendants opposed. The Onondaga County Attorney also opposed reconsideration of the Order quashing the subpoena addressed to District Attorney William J. Fitzpatrick. The plaintiff replied. Both motions were taken on submission without oral argument.*fn1
Defendant John Falge ("Falge"), Chief of Police, suspended Brown with pay on April 28, 2000, based upon information that plaintiff was being investigated by the New York State Police for allegedly taking a fifteen-year-old female runaway to a hotel room he had rented. Additionally, Falge had information that plaintiff disobeyed a prior order to stay away from the girl, and that his denials that he knew the whereabouts of the girl were false. On May 4, 2000, plaintiff was formally charged by misdemeanor informations with one count of endangering the welfare of a child and one count of obstructing governmental administration in violation of New York Penal Law sections 260.10 and 195.10, respectively. The Onondaga County District Attorney's office also initiated an investigation into the charges.
Pursuant to a plea agreement, on June 20, 2000, Brown pled guilty to endangering the welfare of a child in violation of New York Penal Law section 260.10. in full satisfaction of all of the criminal charges against him. As agreed, he was sentenced to a conditional discharge with an order of protection. Upon plaintiff's plea of guilty, he was suspended without pay from the Police Department.
A. Summary Judgment Motion
1. Adverse Employment Action
Defendants correctly assert that all remaining claims*fn2 turn on whether Falge discriminated against Brown based upon his race. Their motion for summary judgment is based upon plaintiff's inability to establish a prima facie case of race discrimination because Falge took no adverse employment action against him.
Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986).
Suspension with pay pending an investigation into criminal charges is not "a materially adverse change in terms and conditions of employment." Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir. 2006). Falge had information that Brown failed to follow a direct order to no longer have contact with a fifteen-year-old girl. He suspended plaintiff with pay pending investigation into, inter alia, the serious criminal charge of endangering the welfare of a minor. Falge followed the Police Department's Rules and Regulations permitting suspension when an employee does not comply with a direct order of a supervisor and when there is "substantial evidence" that the employee acted in "such a flagrant nature as to render" his presence in the "department a source of embarrassment." Thus, plaintiff's suspension with pay did not constitute a materially adverse change in the terms and conditions of his employment and he cannot establish the adverse employment action element of a race discrimination cause of action.
Brown contends that Falge did not act reasonably in suspending him because white officers in purportedly similar situations (of being subject to a criminal investigation) were not always suspended, thus distinguishing him from the plaintiff in Joseph.*fn3 To the contrary, as in Joseph, plaintiff's terms and conditions of employment "did not include a right to expect that he would be allowed to continue his responsibilities while he was facing serious criminal charges." Id. As a police officer plaintiff held a position of public trust. He could not reasonably expect to continue in such a position while he was investigated for endangering the welfare of a child, that is, renting a hotel room and bringing a fifteen-year-old-girl there, conduct antithetical to the public trust.
Brown also claims that Falge suspending him with pay on April 28, 2000, constituted adverse employment action because, although he retained his pay and benefits, he was precluded from working and being paid overtime hours, as well as being stigmatized. According to plaintiff's "recollection," he usually worked about sixteen to twenty hours per week in overtime, and therefore would have worked approximately 180 overtime hours during his 53-day suspension. (Brown Aff. ¶ 3, Doc. No. 241.) However, time records from the Police Department for the previous year, 1999, show that plaintiff's overtime varied considerably, including many pay periods in which he worked no overtime. (Kolis Decl. Ex. A, Doc. No. 250-2.) Further, plaintiff admitted that he did not work overtime when he was on vacation or had other commitments. (Brown Aff. ¶ 2.) The record demonstrates that overtime was an extra, not a guaranteed term of employment. Moreover, any stigma he suffered was a result of his own admitted conduct--bringing a fifteen-year-old runaway girl to a hotel room he rented and then denying ...