Wednesday, May 23, 2012

Moral turpitude crime wipes out discrimination case

The plaintiff is a City of Syracuse Police Officer who lost his job when he was convicted of Endangering the Welfare of a Child because he rented a hotel room for a 15 year-old girl who ran away from home. He sued the City under the Equal Protection Clause and the civil rights laws, arguing that white officers had engaged in similar or worse treatment than minority officers, including him. He loses the case.

The case is Brown v. City of Syracuse, decided on March 13. Brown was suspended without pay after he plead guilty to with Endangering. The question is whether he suffered an adverse employment action after June 2000, when the City suspended him. Without an adverse action, you have no case for employment discrimination. Although Brown was suspended without pay, there is no adverse action after June 2000 because under the state Public Officers Law, a public employee loses his job when he is convicted of an "oath of office" offense. Since Endangering is an "oath of office" offense because it reveals a lack of moral integrity, Brown lost his job even before the City suspended him without pay. The Court of Appeals (Jacobs, Hall and Scheindlin [D.J.]), says there is no adverse employment action since "the July 2000 suspension without pay and the arbitration proceedings leading to his termination all occurred after Brown had lost his job by operation of law."

Brown also argues that his pre-termination suspension was an adverse employment action under the civil rights laws, including Title VII. Under Second Circuit precedent, "administrative leave with pay during the pendency of an investigation does not, without more, constitute an adverse employment action ... where the employer merely enforces its preexisting disciplinary policies in a reasonable manner." While a suspension with pay may, in some circumstances, constitute an adverse action "if the employer takes actions beyond an employee's normal exposure to disciplinary policies," that is not the case here. The City acted reasonably in suspending Brown because the Captain had given Brown a direct order to cease contact with the girl before Brown got her a hotel room when he knew she was a runaway, leaving her alone in the hotel room. Brown misled his superior officers in denying that he rented her the room or knew of her whereabouts. As the City acted pursuant to its regulations that provide for suspending officers "when it reasonably appears that such action is in the best interests of the department," under the circumstances, it did not apply its regulations unreasonably, and Brown therefore did not suffer an adverse action.

Finally, Brown raises an Equal Protection argument because "he should not have been investigated in the first place and the [police department] should have become involved in his investigation and worked with the State Police and District Attorney to achieve a more favorable outcome for him." The general rule is that "civil damages are not available by reason of a police officer's refusal to turn a preferentially blind eye toward another's serious infraction." However, a vigorous investigation motivated by the plaintiff's speech, race or gender that went beyond how the authorities treat members of the general public could predicate an Equal Protection case. Not here. The investigation into Brown's misconduct was nondiscriminatory, and authorities acted reasonably in investigating his questionable behavior. Moreover, the Second Circuit concludes, "to recognize a constitutional violation here based on a failure to extend a 'professional courtesy' would create bizarre incentives encouraging officers to meddle with criminal investigations of a fellow officer's misconduct in order to avoid being subject to liability. This would stand the Equal Protection Clause on its head."

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