United States District Court, N.D. New York
TIMOTHY M. BETLEWICZ, Plaintiff,
DIVISION OF NEW YORK STATE POLICE et al., Defendants.
Office of Martin W. Schwartz MARTIN W. SCHWARTZ, ESQ., Nanuet, NY, for the Plaintiff.
C. HARRIS DAGUE, TIFFINAY M. RUTNIK, Assistant Attorneys General, HON. ERIC T. SCHNEIDERMAN, New York Attorney General, The Capitol, Albany, NY, for the Defendants.
MEMORANDUM-DECISION AND ORDER
GARY L. SHARPE, Chief District Judge.
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,  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.
On December 16, 2009, Betlewicz was employed by the State Police as a trooper. (Defs.' Statement of Material Facts (SMF) ¶ 1, Dkt. No. 47, Attach. 1.) 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. ¶¶ 13-14.) 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).
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 N.Y.S. 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.)
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 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. ( ...