Betlewicz v. The Division of New York State Police et al

Filing 54

MEMORANDUM-DECISION and ORDER - That Betlewicz's 44 Motion for Summary Judgment is DENIED. That defendants' 47 Cross Motion for Summary Judgment is GRANTED and Betlewicz's complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 3/5/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
TIMOTHY M. BETLEWICZ,
Plaintiff,

1:12-cv-1158
(GLS/RFT)

v.
DIVISION OF NEW YORK STATE
POLICE et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Office of Martin W. Schwartz
119 Rockland Center - Suite 134
Nanuet, NY 10954
FOR THE DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
New York Attorney General
The Capitol
Albany, NY 12224

MARTIN W. SCHWARTZ, ESQ.

C. HARRIS DAGUE
TIFFINAY M. RUTNIK
Assistant Attorneys General

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Timothy M. Betlewicz commenced this action against
defendants the Division of New York State Police, former acting

superintendent John P. Melville, and superintendent Joseph D’Amico,
alleging claims under the Equal Pay Act,1 and 42 U.S.C. § 1983 for
violations of the Equal Protection Clause and Due Process Clauses of the
Fifth and Fourteenth Amendments. (Compl. ¶¶ 29-38, Dkt. No. 1.)
Following a motion by defendants under Fed. R. Civ. P. 12(c), (Dkt. No.
28), the court dismissed Betlewicz’s equal protection claim, and
circumscribed the relief that could be obtained on his Equal Pay Act and
due process claims, (Dkt. No. 37). Pending are Betlewicz’s motion for
summary judgment on his remaining claims, (Dkt. No. 44), and defendants’
cross motion for summary judgment, seeking dismissal of the complaint in
its entirety, (Dkt. No. 47). For the reasons that follow, Betlewicz’s motion is
denied, and defendants’ cross motion is granted.
II. Background
A.

Facts2
On December 16, 2009, Betlewicz was employed by the State Police

as a trooper. (Defs.’ Statement of Material Facts (SMF) ¶ 1, Dkt. No. 47,

1

See 29 U.S.C. § 206(d).

2

Unless otherwise noted, the facts are undisputed.
2

Attach. 1.)3 Pursuant to its written procedures, the State Police randomly
selected members of the force to provide urine samples for drug screening.
(Id. ¶ 3.) Betlewicz, who was among those randomly selected for testing
on December 16, 2009, provided a urine sample that was determined to be
too diluted for testing, which required him to provide a second urine sample
and two hair samples. (Id. ¶¶ 4-6; Dkt. No. 47, Attach. 3 at 8; Dkt. No. 51,
Attach. 1 ¶ 7.) The second urine sample provided by Betlewicz, on
January 8, 2010, was also too diluted to effectively test. (Defs.’ SMF ¶¶ 6;
Dkt. No. 51, Attach. 1 ¶ 7.) On January 14, one of the two hair specimens
was analyzed and it tested positive for marijuana. (Defs.’ SMF ¶¶ 11-12.)
“The presence of marijuana in [Betlewicz’s] hair sample was at a level
indicative of multiple and sustained usage - ten times the laboratory’s
administrative cut off level for such a determination.” (Id. ¶ 12.)
On January 14, Betlewicz was suspended without pay, and on
February 1, he was served with disciplinary charges, which accused him of
violating State Police rules and regulations prohibiting drug use. (Id. ¶¶ 133

Notably, Betlewicz failed to respond to defendants’ statement of
material facts as required by the Local Rules of Practice. See N.D.N.Y.
L.R. 7.1(a)(3). Where properly supported, the facts asserted by
defendants in their statement of material facts are deemed admitted
pursuant to Local Rule 7.1(a)(3).
3

14.) Because the suspension exceeded thirty days, Betlewicz was
restored to suspended with pay status on February 14. (Dkt. No. 51,
Attach. 1 ¶ 16); 9 N.Y.C.R.R. § 479.10(b). At the insistence of Betlewicz’s
attorney, the second hair specimen was tested; it, like the first specimen,
tested positive for marijuana. (Defs.’ SMF ¶¶ 16, 18.) On February 24, the
date his hearing was supposed to be held on the disciplinary charges,
Betlewicz reverted back to suspended without pay because the matter was
adjourned at the request of his counsel. (Dkt. No. 51, Attach. 1 ¶¶ 15, 19.)
On March 7, Betlewicz resigned his position with the State Police, but the
following day he rescinded his resignation. (Defs.’ SMF ¶ 19-20.)
Thereafter, Betlewicz participated in a hearing on the disciplinary charges,
which concluded in findings sustaining the charges and recommending his
termination. (Id. ¶¶ 21-22; Dkt. No. 51, Attach. 1 at 137-41.) Melville
accepted those findings and the recommendation that Betlewicz be
terminated on May 6, 2010, and Betlewicz was terminated on the same
day. (Defs.’ SMF ¶¶ 22-23.) Betlewicz did not challenge his termination,
(Dkt. No. 51, Attach. 1 ¶ 29), and he received no pay, with the exception of
the brief period in February mentioned above, (id. ¶¶ 15, 16, 19), from
January 13 to May 6, (Pl.’s SMF ¶¶ 4, 8, Dkt. No. 44).
4

While the foregoing facts were unfolding, on January 10, Betlewicz
claimed that he was injured on the job. (Defs.’ SMF ¶ 8.) Although the
parties now dispute whether Betlewicz was, in fact, injured on the job, a
Workers’ Compensation Law Judge (WCLJ) previously determined that
Betlewicz “had been injured in a genuine line-of-duty accident.” (Pl.’s SMF
¶ 10.) The WCLJ’s finding was upheld on appeal to the Workers’
Compensation Board (WCB). (Id. ¶ 13); see NYS Div. of Police, No. G014
8175, 2010 WL 3841976 (N.Y. Workers’ Comp. Bd. Oct. 4, 2010). Despite
the WCB’s finding, the State Police have undertaken a criminal
investigation to determine if Betlewicz “falsely claimed he was injured at
work, knowing his employer was about to receive positive results from his
drug test.” (Defs.’ SMF ¶ 9.) Defendants have also refused to grant
Betlewicz wages he applied for pursuant to § 5.12 of the State Police
Administrative Manual, even though certain female troopers, who
performed the same kinds of duties as Betlewicz when they were injured
while on duty, have received § 5.12 benefits, and “no female troopers so
injured in the line of duty have been refused the same kind of pay that has
been denied to [Betlewicz].” (Pl.’s SMF ¶¶ 14, 15; Dkt. No. 51, Attach. 1
¶ 31.)
5

Ultimately, on August 9, 2011, the New York State Comptroller
granted Betlewicz an accidental disability retirement pension. (Pl.’s SMF
¶ 16.) Related to the Comptroller’s award of an accidental disability
retirement pension, a State Police human resources internal memorandum
reflects a “payroll transaction” for Betlewicz of “Approved Disability
Retirement - Previously ‘Dismissed’” on August 26, 2011. (Dkt. No. 47,
Attach. 4 at 5; Pl.’s SMF ¶ 16.) While Betlewicz claims that the payroll
transaction reflects defendants’ adoption of the Comptroller’s determination
ab initio, (Pl.’s SMF ¶ 17), it was “merely a ministerial record-keeping
function to document the Comptroller’s action,” and Betlewicz’s official
status remains “terminated” for “disciplinary removal,” (Dkt. No. 47, Attach.
4 ¶¶ 12, 14).
B.

Procedural History
Betlewicz commenced this action in January 2012. (See generally

Compl.) Following joinder of issue, (Dkt. No. 26), defendants moved for
judgment on the pleadings, (Dkt. No. 28). The motion was granted to the
extent that Betlewicz’s equal protection claim and due process claim as
against the State Police and Melville and D’Amico in their official capacities
were dismissed. (Dkt. No. 37 at 18.) The motion was denied in all other
6

respects, leaving for adjudication Betlewicz’s claims under the Equal Pay
Act and for a procedural due process violation as against Melville and
D’Amico in their individual capacities. (Id.) Before a pretrial scheduling
order was issued by the court, (Dkt. No. 43), the parties filed their
competing summary judgment motions, (Dkt. Nos. 44, 47).
III. Standard of Review
The standard of review pursuant to Fed. R. Civ. P. 56 is well
established and will not be repeated here. For a full discussion of the
standard, the court refers the parties to its decision in Wagner v. Swarts,
827 F. Supp. 2d 85, 92 (N.D.N.Y.2011), aff’d sub nom. Wagner v.
Sprague, 489 F. App’x 500 (2d Cir.2012).
IV. Discussion
Betlewicz argues that he is entitled to summary judgment on his
claims under the Equal Pay Act and for a due process violation under
§ 1983. (Dkt. No. 44, Attach. 2 at 4-17.) With respect to the Equal Pay Act
claim, Betlewicz asserts that the only reasonable defense available to
defendants—that a differential in pay between he and female employees
was based upon any other factor than sex—is “‘off the table’ because . . .
[d]efendants themselves have officially changed [Betlewicz]’s status from
7

‘Dismissed’ to ‘Disability Retirement.’” (Id. at 5-9.) He further argues that
three reasons demonstrate that his “alleged illegal drug use and resulting
punishment are not a valid ‘factor other than sex’”: (1) his claim for unpaid
salary is supported by the WCB finding and the change in payroll status
noted above; (2) for the six months preceding his termination, he was not
adjudicated as having used drugs; and (3) his alleged drug use is
“completely unrelated to the merits of [his] claim for, and right to receive,
the pay that is due him because of his serious injuries and resulting
inability to work for an extended period of time.” (Id. at 8-9.) Even if
defendants are able to show that a differential in pay was based on a factor
other than sex, Betlewicz contends that he can demonstrate pretext
through the lacking credibility of defendants’ contention that the difference
was because of drug use. (Id. at 9-13.) Turning to his procedural due
process claim, Betlewicz argues that defendants have deprived him of a
property right, namely, “leave pay,” without affording him any procedural
protections. (Id. at 13-17.)
In response, defendants argue that Betlewicz’s motion should be

8

denied as premature. (Dkt. No. 47, Attach. 2 at 7-10.)4 In particular,
defendants seek discovery by way of a deposition of Betlewicz to elicit
facts—which they contend are reasonably expected to create genuine
issues of material fact—pertaining to: his marijuana usage; whether he
fabricated the January 10 incident “to neutralize the effect of his impending
drug test failure”; and the basis of his belief that defendants have
abandoned their position that he is not entitled to a disability retirement.
(Id. at 8.) To this argument, Betlewicz asserts that discovery is not
necessary because: (1) defendants are disingenuous given their
assertions—in support of their cross motion—that the factual discrepancies
regarding his marijuana usage are “‘of no moment’”; (2) defendants are
estopped from challenging the WCB’s determination; and (3) any inquiry
about why he believes that defendants have changed their position would
not yield discoverable facts. (Dkt. No. 50 at 4-7.) Betlewicz also claims
that, by changing his status to “Disability Retirement,” defendants have
4

Defendants also rightly opposed Betlewicz’s motion on the ground
that it was not supported with “legally sufficient materials”; namely, the
only evidence in support of Betlewicz’s motion was an attorney
declaration. (Dkt. No. 47, Attach. 2 at 5-6.) The parties agree that
Betlewicz’s later-filed declaration confirming the truth and accuracy of the
attorney declaration has rectified the shortcomings of Betlewicz’s original
motion papers. (Dkt. No. 50, Attach. 1; Dkt. No. 52 at 3 n.1.)
9

admitted his entitlement to back pay and are foreclosed from now taking an
inconsistent position. (Id. at 7.)
In the event that the court finds that summary judgment is not
premature, defendants argue that the undisputed facts nonetheless entitle
them to judgment as a matter of law. (Dkt. No. 47, Attach. 2 at 10-18.)
First, as to Betlewicz’s Equal Pay Act claim, defendants contend that a
factor other than sex, in particular Betlewicz’s failed drug test, was the
basis for denying him certain benefits that female employees of the State
Police were awarded, and that he cannot establish that this justification is
pretextual because his termination followed a robust disciplinary process.
(Id. at 11-14.) Second, Betlewicz’s procedural due process claim fails,
argue defendants, because he did not have a property right in the denied
benefits. (Id. at 14-17.) Specifically, defendants claim that, because
Betlewicz’s absence from work was necessitated by his failed drug test, as
opposed to an on-the-job injury, he does not meet the prerequisites for
leave due to injury in the performance of duty benefits under Administrative
Manual § 5.12. (Id. at 14-15.) Moreover, 9 N.Y.C.R.R. § 479.13 prohibits
a member of the State Police found guilty of disciplinary charges to collect
back pay even if restored to his position, and, even if Betlewicz had a
10

property interest in leave pay, he was afforded adequate process during
the disciplinary proceedings. (Id. at 16-17.) Finally, Melville and D’Amico
argue that they are entitled to qualified immunity on the due process claim
because it was “objectively unreasonable for [them] to have believed that,
after terminating [Betlewicz] for cause, that they should have awarded him
leave pay for the time he spent suspended without pay.” (Id. at 17-18.)
Betlewicz counters that defendants have failed to raise a sufficient
defense to his Equal Pay Act claim because they abandoned their position
that drug use justified withholding back pay by officially changing his status
to “Disability Retirement,” which results in any argument about his drug use
as being “effectively . . . discredited and dropped from the case entirely.”
(Dkt. No. 50 at 9.) Turning to his due process claim, Betlewicz argues that
defendants improperly focus on the process afforded to him regarding his
termination, and, again, that he had a property interest in the leave pay
that was denied. (Id. at 10-11.) As for qualified immunity, Betlewicz
contends that Melville and D’Amico are not entitled to the defense because
they were not performing a discretionary function, and the right to payment
of compensation is clearly established, both of which demonstrate that “[i]t
was not objectively reasonable for [them] to deprive [him] of compensation
11

he had earned without affording him an opportunity to be heard.” (Id. at
12-13.) In reply, defendants aptly note that Betlewicz has offered nothing
to refute the affidavits of State Police employees Kevin Bruen and Neely
Jennings, which show, among other things, that his official payroll status
“remains listed as ‘terminated,’ with a comment code of ‘disciplinary
removal.’” (Dkt. No. 52 at 4-5; Dkt. No. 47, Attach. 4 ¶ 12; Dkt. No. 51,
Attach. 1.)
Each of these arguments is considered below. As explained there,
the court agrees with Betlewicz that its consideration of the pending
summary judgment motions is not premature; however, it agrees with
defendants that they are entitled to summary judgment on the remaining
claims.5
A.

The Pending Motions Are Not Premature

5

Additionally, the court notes that the parties have failed to clearly
delineate the time periods for which Betlewicz is claiming leave pay under
§ 5.12 of the Administrative Manual. The court’s best guess is that
Betlewicz seeks leave pay from January 14, 2010, the date his
suspension without pay commenced, to August 9, 2011, when he was
awarded an accidental disability retirement pension, with the exception of
those dates in February 2010 when his suspension was with pay. (Pl.’s
SMF ¶¶ 5, 16; Dkt. No. 51, Attach. 1 ¶¶ 16, 19.) For reasons explained
below, this ambiguity is of no moment.
12

Federal Rule of Civil Procedure 56(d) provides a mechanism for the
court to defer consideration of a summary judgment motion, provide time
for discovery, or “issue any other appropriate order” when the nonmovant
“shows by affidavit or declaration that, for specified reasons, it cannot
present facts essential to justify its opposition.” Here, defendants claim
that Betlewicz’s motion is premature, and they seek time for discovery;
specifically, they express their desire to depose Betlewicz. (Dkt. No. 47,
Attach. 2 at 7-10.) While defendants, on the one hand, articulate how
discovery will yield material facts and that those facts are reasonably
expected to create genuine issues of fact, (id.), on the other, they contend
that the parties disagree only on the “legal conclusions drawn from
[undisputed] historical events in this case,” (id. at 10-11). Indeed, setting
aside the disputed facts, defendants argue that “the balance of facts[,]
which are not in dispute, entitle defendants [to] summary judgment,” (id. at
10)—with this assertion, the court agrees. Accordingly, because there are
no material facts in dispute, defendants’ arguments in support of denial or
postponement of Betlewicz’s motion are rejected.
B.

Equal Pay Act
Moving on to the merits of the claims, this court has previously
13

explained, (Dkt. No. 37 at 12), that the Equal Pay Act “prohibits employers
from discriminating among employees on the basis of sex by paying higher
wages to employees of the opposite sex for ‘equal work on jobs the
performance of which requires equal skill, effort, and responsibility, and
which are performed under similar working conditions.’” Belfi v.
Prendergast, 191 F.3d 129, 135 (2d Cir. 1999) (quoting 29 U.S.C. §
206(d)(1)). For purposes of the Equal Pay Act, the term “wages”
encompasses “[f]ringe benefits, such as medical, hospital, accident, life
insurance, and retirement benefits, bonus plans and leave.” Equal Emp’t
Opportunity Comm’n v. Bell Atl. Corp., Nos. 97 Civ. 6723(DC), 98 Civ.
3427(DC), 1999 WL 386725, at *7 (S.D.N.Y. June 11, 1999) (citing 29
C.F.R. § 1620.11).
Once a plaintiff makes a prima facie showing—as was found by the
court based upon the pleadings alone, (Dkt. No. 37 at 14)—“the burden of
persuasion shifts to the defendant to show that the wage disparity is
justified by one of [four] affirmative defenses provided under the Act,” Belfi,
191 F.3d at 136. Here, the only defense available to defendants is “a
differential based on any other factor other than sex.” 29 U.S.C.
§ 206(d)(1). “[T]o successfully establish the ‘factor other than sex’
14

defense, an employer must also demonstrate that it had a legitimate
business reason for implementing the gender-neutral factor that brought
about the wage differential.” Belfi, 191 F.3d at 136.
If the employer offers such proof, “the plaintiff may counter the
employer’s affirmative defense by producing evidence that the reasons the
defendant seeks to advance are actually a pretext for sex discrimination.”
Id. “The appropriate inquiry to determine if the factor put forward is a
pretext, is whether the employer has use[d] the factor reasonably in light of
the employer’s stated purpose as well as its other practices.” Id. (internal
quotation marks and citation omitted).
Here, defendants have adequately established the “factor other than
sex” defense, and Betlewicz has failed to demonstrate that the reason
offered by defendants is pretext for sex-based discrimination. This
conclusion is tangled up with Betlewicz’s argument that defendants are
precluded from arguing that his drug use justified a difference in pay. (Dkt.
No. 44, Attach. 2 at 7-9; Dkt. No. 50 at 8, 9.) Betlewicz relies on a flawed
premise: that, by changing his status to “Disability Retirement,” defendants
have admitted his entitlement to leave due to injury in the performance of
duty benefits under § 5.12, and that they cannot now change course on
15

their concession. (Dkt. No. 44, Attach. 2 at 7.) The uncontroverted
affidavit of Jennings shows just the opposite; i.e., Betlewicz’s official payroll
status remains terminated for disciplinary removal. (Dkt. No. 47, Attach. 4
¶¶ 12-13.) Moreover, what Betlewicz claims was a change “is merely a
ministerial record-keeping function to document the Comptroller’s action.”
(Id. ¶ 14.) Betlewicz entirely ignores the Jennings affidavit, instead he
holds fast to his assertion that “[d]efendants themselves effectively have
abandoned their position that [Betlewicz] used illegal drugs, because they
have officially changed his status from ‘Dismissed’ to ‘Disability
Retirement.’” (Dkt. No. 50 at 9.) Betlewicz’s argument is plainly without
merit.
Betlewicz’s other arguments attacking defendants’ “factor other than
sex” defense are equally unavailing. (Dkt. No. 44, Attach. 2 at 8-9.)6 First,
Betlewicz claims, without further explanation, that the proffered defense is
ineffective because “during the six months preceding his ultimate
6

Considering the invalidity of Betlewicz’s assertion that defendants
“regard him now as on ‘Disability Retirement,’ [and] not as having been
‘Dismissed,’” the court need not further address Betlewicz’s first argument
that his claim for § 5.12 leave pay “is underscored by the fact that he
prevailed” before the WCB “proceeding arising out of his injury” and the
aforementioned change in position by defendants. (Dkt. No. 44, Attach. 2
at 8.)
16

termination from employment, [he] had not been adjudicated as having
used drugs.” (Dkt. No. 44, Attach. 2 at 8-9.) While this assertion is
factually correct, (Pl.’s SMF ¶¶ 5, 8), it ignores regulations that permitted
Betlewicz’s suspension without pay after disciplinary charges were filed
against him, see 9 N.Y.C.R.R. § 479.10(a). Moreover, the urine and hair
samples were collected prior to the date that Betlewicz claimed he was
injured on the job, (Defs.’ SMF ¶¶ 7, 8), which demonstrates that his drug
use predated his injury. In addition, the applicable regulations also hold
that an accused member of the State Police found guilty of disciplinary
charges “shall not be entitled to back-pay for the period he was
suspended, notwithstanding the fact that he has been restored to his
position.” 9 N.Y.C.R.R. § 479.13. While these regulations do not facially
account for a member who has sustained an on-the-job injury such that he
is entitled to § 5.12 benefits, they establish that defendants had a
legitimate business reason for the alleged wage differential.
Second, Betlewicz’s argument that his “alleged drug use is
completely unrelated to the merits of [his] claim for, and right to receive,
the pay that is due him because of his serious injuries and resulting
inability to work for an extended period of time,” (Dkt. No. 44, Attach. 2 at
17

9), does not demonstrate that defendants’ “factor other than sex” defense
is flawed. The basis of Betlewicz’s contention is that denial of § 5.12
benefits because of an unrelated, minor, alleged drug infraction cannot be
grounded in a legitimate business reason. (Id.) That position is unjustified.
Indeed, it is perfectly reasonable for defendants to withhold leave pay for
an employee who tested positive for marijuana use that predated an injury
which would otherwise give rise to leave pay.
Satisfied that defendants have established a “factor other than sex”
defense, the burden shifts back to Betlewicz to show that the denial of
leave pay for his drug use is merely pretext for sex-based discrimination.
See Belfi, 191 F.3d at 136. While Betlewicz contends that he can
demonstrate pretext, his arguments are baseless attacks on the defense,
(Dkt. No. 44, Attach. 2 at 9-12), that the court has already found sufficient.
For example, Betlewicz claims that defendants’ “proffered reason for the
difference in pay simply is not credible” and that they “cannot even
articulate, much less support with evidence, a viable factor ‘other than sex’
for their disparate treatment of [him].” (Id. at 10-11) Putting these
inapposite arguments aside, there is no doubt that defendants reasonably
applied the factor other than sex at play here: a violation of State Police
18

drug use policies to justify the denial of § 5.12 benefits. It is also worth
noting that Betlewicz has not even attempted to refute Bruen’s affidavit
establishing that he knew “of no other current or former member [of the
State Police], male or female, that has been awarded leave pay pursuant
to Section 5.12, after having been suspended and terminated for failing a
required drug test.” (Dkt. No. 51, Attach., 1 ¶ 32.) This assertion further
supports the notion that Betlewicz cannot show that the denial of leave pay
had anything whatsoever to do with his sex.
For all of these reasons, defendants are entitled to summary
judgment on Betlewicz’s Equal Pay Act claim.
B.

Procedural Due Process
Fundamentally, procedural due process requires notice and an

opportunity to be heard. See Mullane v. Cent. Hanover Bank & Trust Co.,
339 U.S. 306, 314 (1950). The success of a procedural due process claim
relies upon the plaintiff: (1) identifying a property right; (2) showing a
deprivation of that right by the state; and (3) “show[ing] that the deprivation
was effected without due process.” Local 342, Long Island Pub. Serv.
Emps., UMD, ILA, AFL-CIO v. Town Bd. of the Town of Huntington, 31
F.3d 1191, 1194 (2d Cir. 1994) (internal quotation marks and citation
19

omitted). Property interests are not created by the Constitution, but
instead “are created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state
law[—]rules or understandings that secure certain benefits and that
support claims of entitlement to those benefits.” Bd. of Regents of State
Colls. v. Roth, 408 U.S. 564, 577 (1972). And, as for the process itself,
there is no violation unless the state either provides no process
whatsoever or provides a constitutionally inadequate one. See Zinermon
v. Burch, 494 U.S. 113, 125 (1990).
Here, Betlewicz argues that he holds a valid property interest in leave
pay under § 5.12, it has been denied to him, and that the denial was
effected without any procedural safeguards. (Dkt. No. 44, Attach. 2 at 1317.) The court agrees with Betlewicz that he had a property right in
benefits under § 5.12 for leave due to injury in the performance of duty.
Indeed, the WCB’s determination, which went unchallenged by the State
Police, established that Betlewicz was “injured in a genuine line-of-duty
accident” despite arguments by the State Police that Betlewicz fabricated
his accident out of fear that he would fail the impending drug test. (Pl.’s
SMF ¶¶ 10, 12-13.) Defendants concede this point. (Dkt. No. 47, Attach.
20

2 at 15.)
Defendants argue, however, that Betlewicz does not meet the
requirements of § 5.12, and that his right to leave pay did not accrue,
because his absence from duty was “necessitated by his suspension (and
subsequent termination) after a positive drug test,” and not by his injury as
required under § 5.12. (Id.) This argument does not suggest that
Betlewicz had no property interest in the benefits available under § 5.12,
or, to put it differently, that his right to them did not accrue before his
suspension without pay on January 14, but, instead, it supports the notion
that the disciplinary process that led to Betlewicz’s termination provided
him with all the process that he was due before the benefits were denied.
Admittedly, Administrative Manual § 5.12 and regulations codified in
the Compilation of Codes, Rules and Regulations of the State of New York
governing the State Police appear to be in tension with one another. The
Administrative Manual is a nonpublic document of internal State Police
regulations that contains “compilations of investigative techniques” and
other procedures, Fink v. Lefkowitz, 47 N.Y.2d 567, 573 (1979), which
include, as relevant here, matters of discipline and leave, (Dkt. No. 47,
Attach. 3 at 7-18, 145-47). Section 5.12 of the Administrative Manual,
21

titled “Leave Due To Injury Or Disease Incurred In The Performance Of
Duty,” provides that:
a Member [of the State Police] who is necessarily
absent from duty because of an occupational injury
. . . upon giving notice to the Superintendent that the
absence is because of such injury . . . and that the
Member claims benefits under this Law, may, pending
adjudication of the case and while the disability
renders the Member unable to perform the duties of
his/her position be granted leave with full-pay for a
period not to exceed [six] months.
(Dkt. No. 47, Attach. 3 at 145.) Elsewhere, it is clear that leave with full
pay is available beyond six months, and, in some cases, if the member
suffers a permanent injury it can be “continued . . . but not beyond the
effective date of retirement of the Member.” (Id. at 146.) On the other
hand, the regulations provide that, under certain circumstances, a member
may be suspended without pay pending a disciplinary hearing, see 9
N.Y.C.R.R. § 479.10(a), and that a member found guilty of disciplinary
charges “shall not be entitled to back-pay for the period he was
suspended, notwithstanding the fact that he has been restored to his
position,” id. § 479.13. In this court’s view, the disciplinary suspension and
subsequent discipline of a member, following a guilty finding as to any
disciplinary charges, forecloses the member’s receipt of benefits under
22

§ 5.12 provided that the member is afforded adequate process in the
disciplinary hearing. To hold otherwise would permit those members who
have violated the Administrative Manual drug use policy, or committed
more egregious offenses under State Police rules and regulations, to
nonetheless be enriched under § 5.12 despite their misdeeds.
Assuming that Betlewicz met all the requirements for leave pay at the
time of his suspension, his marijuana-positive drug test was not without
consequences. Betlewicz was on notice that the disciplinary charges, if
sustained, could result in a host of disciplinary action including his
termination, (Dkt. No. 47, Attach. 3 at 20-24), and that he was not entitled
to any back pay if he was found guilty of any of the charges, see 9
N.Y.C.R.R. § 479.13. Moreover, Betlewicz, represented by counsel, fully
participated in the disciplinary hearing that led to his termination. (Defs.’
SMF ¶¶ 23-24.) Therefore, even though Betlewicz has demonstrated that
he had a property interest in leave pay under § 5.12 and that it was denied
him, he received a constitutionally adequate process.7
V. Conclusion
7

In light of the foregoing, the court need not address defendants’
argument that Melville and D’Amico are entitled to qualified immunity.
(Dkt. No. 47, Attach. 2 at 17-18.)
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WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Betlewicz’s summary judgment motion (Dkt. No. 44)
is DENIED; and it is further
ORDERED that defendants’ cross motion for summary judgment
(Dkt. No. 47) is GRANTED and Betlewicz’s complaint (Dkt. No. 1) is
DISMISSED; and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
March 5, 2014
Albany, New York

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