The opinion of the court was delivered by: Hall, Circuit Judge:
Brown v. City of Syracuse
Before: JACOBS, Chief Judge, HALL, Circuit Judge, and SCHEINDLIN, District Judge.*fn1
Appeal from an award of summary judgment; Appellant, inter alia, argues that the law of the case doctrine precludes summary judgment with respect to his Title VII, New York Human Rights Law, § 1981, and § 1983 claims. Appellant, an African-American and former Syracuse police officer, was suspended with pay pending investigation of an incident involving a fifteen-year-old girl whom he took to a hotel knowing she was a runaway. He was eventually suspended without pay and terminated. He claims Appellees--the City of Syracuse and certain police officers--discriminated against him by treating him more severely than white officers who committed acts of an equal or more serious nature. Because Appellant's subsequent guilty plea to the charge of Endangering the Welfare of a Child resulted in his automatic termination under New York Public Officers Law § 30(1)(e), he cannot prove an "adverse employment action" for any of the measures taken by his employer after his guilty plea. Further, as a matter of law, Appellant's suspension with pay pending the investigation did not, in these circumstances, amount to an adverse employment action, and Appellant has no constitutionally recognized cause of action for deprivation of "professional courtesy" that police sometimes extend to their fellow officers.
This is an appeal from the January 12, 2010, judgment of the United States District Court for the Northern District of New York (Hurd, J.), granting Defendants-Appellees the City of Syracuse, John Falge, Gary Miguel, and John Doe (collectively, the "Appellees") summary judgment. On appeal, Plaintiff-Appellant Curtis Brown ("Brown") argues, inter alia, that this court's prior decision in this case, Brown v. City of Syracuse (Brown I), 197 F. App'x 22 (2d Cir. 2006) (summary order), establishes the law of the case and that several rulings by the district court following remand conflict with our previous decision. In addition, he contends the district court erred in holding he suffered no adverse employment action based on his pre-termination treatment nor had a cognizable equal protection claim for his alleged deprivation of "professional courtesy." Brown, a former Syracuse police officer, brought this suit after then-Police Chief John Falge suspended him with pay for an incident that took place in April 2000 involving a fifteen-year-old girl who had left her home and for whom Brown had rented a hotel room while she was missing. Brown, who is African American, charges that the Syracuse Police Department ("SPD") discriminated against him and other minority police officers through disparate disciplinary treatment. He argues that white officers have engaged in similar or, in some cases, worse conduct, yet have been given better treatment by the SPD than minority officers, including him. That more favorable treatment includes allowing officers to resign or retire in lieu of prosecution, allowing them to remain on the job pending an investigation, or not investigating them at all. Brown also alleges that Appellees violated the Equal Protection Clause of the United States Constitution by suspending him and failing to intervene, as they would have for a white officer, in his eventual prosecution and conviction that stemmed from the incident and the attendant investigation. Brown filed his complaint in 2001, and the Appellees successfully moved to dismiss part of his complaint. After the district court dismissed his remaining claims on summary judgment, he filed an appeal to this court. As discussed further below, we vacated the judgment in Brown I.
Following remand, the district court found that Brown's employment relationship with the City of Syracuse terminated upon his conviction of Endangering the Welfare of a Child ("Endangering"), which the New York Court of Appeals has determined is an "oath of office" offense that results in immediate termination upon conviction. See Feola v. Carroll, 890 N.E.2d 219 (N.Y. 2008); New York Public Officers Law § 30(1)(e). The district court reasoned that Brown could not use as proof of an "adverse employment action"--a lynchpin of his discrimination claims--any action Appellees took with respect to Brown's employment after the Endangering conviction. The only action alleged to have been adverse prior to the conviction was Brown's suspension with pay and what he asserts was his loss of overtime pay. Relying on Joseph v. Leavitt, 465 F.3d 87 (2d Cir. 2006), the district court decided as matter of law that Brown's suspension with pay pending an investigation was not an adverse employment action. It rejected Brown's argument that his loss of overtime pay changed the rule in Joseph. The district court also decided that Brown's equal protection argument, for which an adverse employment action is not a necessary element, fails under the rationale of Diesel v. Town of Lewisboro, 232 F.3d 92 (2d Cir. 2000), which held that a police officer was not entitled to the "professional courtesy" of having his fellow police officers look the other way or otherwise work on his behalf to mitigate criminal charges. Id. at 103-04. Both cases, Joseph and Diesel, along with the decision of the New York Court of Appeals in Feola, dictate that we affirm the judgment in Appellees' favor. We write this opinion to explain why Brown's efforts to distinguish Joseph fail and also explain why this case does not present a "selective treatment" claim cognizable under Diesel.
The following facts are not in dispute. In late 1999, Captain Thomas Galvin of the SPD Internal Affairs Division asked Brown about a complaint that Brown might be having a relationship with a fifteen-year-old girl he had been seen picking up from school. Captain Galvin concluded that no official misconduct took place, but directed Brown to have no further contact with the girl.
In April 2000, the girl, distraught over a fight with her mother, left home. The next day, she called Brown because she did not feel safe being alone. When Brown picked her up from a local restaurant at approximately 5:00 p.m., she told him about leaving home, and Brown took her to a hotel room. He stayed with her briefly and then went to work at approximately 6:00 p.m., leaving the girl alone in the room. The girl's mother, who had been looking for her, discovered that her daughter was staying at the hotel room rented in Brown's name. The mother called the New York State Police, and they notified the SPD of Brown's alleged involvement. When asked about the girl by a fellow SPD officer that evening, Brown said that he did not know of her whereabouts, and he denied having rented her a hotel room. At that point, the girl had in fact left the hotel room, but she had not returned home. The next morning she called Brown, and he picked her up from a local shopping mall before taking her to school.
That same morning, Captain Galvin reported to Chief Falge on the status of the missing girl, the investigation, and Brown's involvement. Chief Falge ordered Galvin to suspend Brown with pay pending an investigation. Galvin then spoke with Brown and asked him again if he had any knowledge of the girl's whereabouts, which Brown denied, despite having dropped her off at school. After that conversation, Captain Galvin suspended Brown. The girl was later found safe at school. She gave a statement to the State Police regarding the recent events, including Brown's involvement. The state police proceeded with their investigation. At some point they asked the SPD whether it wanted to assist or participate in the matter. Captain Galvin consulted with Chief Falge, and they declined because the girl lived outside of the city. On May 5, 2000, State Police investigators charged Brown with two misdemeanor offenses: Endangering and Obstructing Governmental Administration.
After plea negotiations Brown pleaded guilty, on June 20, 2000, to one count of Endangering in full satisfaction of all charges. On July 5, 2000, the SPD suspended him without pay pending his termination proceedings. On December 7, 2005, the arbitrator assigned to review the termination issued an ...