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Wednesday, March 14, 2012

Loss of employment by operation of law does not constitute an “adverse employment action” within the meaning of civil rights laws

Loss of employment by operation of law does not constitute an “adverse employment action” within the meaning of civil rights laws
Brown v. City of Syracuse, USCA, Second Circuit, Docket No. 10-0529-cv

Curtis Brown, an African-American former City of Syracuse police officer, was suspended with pay pending investigation of an incident and ultimately suspended without pay and terminated. *

Brown filed a civil rights complaint, contending that the City of Syracuse unlawfully discriminated against by treating him more severely than white officers who committed acts of an equal or more serious nature. 

The Circuit Court of Appeals, noting that Brown had subsequent guilty plea to certain criminal charge, ruled that he could not prove an “adverse employment action” for any of the measures taken by by the City after his guilty plea as his plea of guilty resulted in his automatic termination in accordance with New York Public Officers Law §30(1)(e).**.

Further, as a matter of law, the court ruled that Brown’s suspension with pay pending the investigation did not, under the circumstances, amount to an adverse employment action.

Citing Joseph v. Leavitt, 465 F.3d 87at 91, the Circuit Court explained that “administrative leave with pay during the pendency of an investigation does not, without more, constitute an adverse employment action” as “an employee does not suffer a materially adverse change in the terms and conditions of employment where the employer merely enforces its preexisting disciplinary policies in a reasonable manner.”***

Brown also claimed discrimination because he was deprived of “professional courtesy” that police sometimes extend to their fellow officers.

The Circuit Court disagreed, holding that his claim “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.”

The Court of Appeals, after considering Brown’s other arguments, found them without merit and affirmed the District Court’s granting the City of Syracuse’s motion for summary judgment.

* On December 7, 2005, a disciplinary arbitrator reviewed Brown’s termination and found “just cause” existed to terminate Brown effective July 5, 2000.

** Public Officers Law §30(1)(e) provides that a public office becomes vacant upon the incumbent’s conviction of “a crime involving a violation of his oath of office" and a plea of guilty is deemed a conviction. Police officers are “public officers” with in the meaning of §30(1)(e).

*** N.B. The court, however, cautioned that it has “noted that our rule is not an absolute one, and that a suspension with pay may, in some circumstances, rise to the level of an adverse employment action.”

The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/d7c9b26b-cefe-4365-9338-fef7922cb934/2/doc/10-529_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d7c9b26b-cefe-4365-9338-fef7922cb934/2/hilite/

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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