Conners v. BILLERICA POLICE DEPT.

679 F.Supp.2d 218

Thomas J. CONNERS v. BILLERICA POLICE DEPARTMENT, Town of Billerica, and Daniel Rosa.

Civil Action No. 08-11565-RGS.

United States District Court, D. Massachusetts.

January 19, 2010.

Scott A. Lathrop, Attorney at Law, Groton, MA, for Thomas J. Conners.

Leonard H. Kesten, Jeremy I. Silverfine, Brody, Hardoon, Perkins & Kesten, Boston, MA, for Billerica Police Department, Town of Billerica, and Daniel Rosa.

MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

STEARNS, District Judge.

On September 12, 2008, Thomas J. Conners, a Billerica police patrolman, brought this Uniformed Services Employment and Reemployment Rights Act (USERRA) action¹ against the Town of Billerica, the Billerica Police Department (Department), and Daniel Rosa, the Billerica Chief of Police. On August 31, 2009, defendants moved for summary judgment. The court heard oral argument on the motion on November 30, 2009.

BACKGROUND

Conners joined the United States Army Reserves (Reserves) in November of 1993. In June of 2002, Conners was hired by the Department as a patrolman. In January of 2005, Conners received orders to report for military duty from January 26 through January 31, 2005. Conners gave a copy of his orders to Lt. Ronald Balboni, the Department official responsible for monitoring employee time and attendance. Lt. Balboni informed Conners that he had exhausted the seventeen days of military leave granted by the Town to employees with military obligations. Balboni told Conners that he would be required either to use his vacation time or to "swap" shift assignments with other patrolmen. According to Lt. Balboni, Chief Rosa had been advised by counsel that he was not required to honor Conners' military orders. Conners told him that any refusal by the Chief to do so would violate federal law.

On January 25, 2005, Conners asked for assistance from his father, Thomas Conners, Sr., then the Deputy Chief of Police. Deputy Chief Conners repeated what Balboni had said—that Chief Rosa had been advised by counsel that, as the Chief, he had the right to make the determination whether Conners' military service was in the interest of national security. Conners was instructed to call Lt. Col. Pat Sperlongano, his Army Reserve commander, and explain that his enforced absence would unduly burden the Department's overtime budget.

Conners asked instead to meet with Chief Rosa. Conners brought copies of USERRA and related Massachusetts statutes to the meeting. He told Chief Rosa that any denial of compensated military leave violated federal and state law. Chief Rosa replied that the Counsel for the Massachusetts Chiefs of Police Association had advised him that Conners was entitled to only seventeen days of annual military leave. After the meeting, Lt. Col. Jerry Benson, a Judge Advocate, called Chief Rosa at Conners' request. Lt. Col. Benson told Rosa that his order that Conners forfeit vacation time was illegal. He also told the Chief that he had advised Conners that he had no choice but to report for duty as ordered. Chief Rosa did not relent.

During the ensuing weeks, Conners became physically ill over the impasse. He nonetheless reported for duty as ordered on January 26, 2005. When Conners returned to the Department on February 1, 2005, he learned that he had been classified as on "unpaid military leave."

In February of 2007, Conners was ordered to report to Basic Officer Leadership School. Conners provided Lt. Balboni with a copy of his orders. Shortly before reporting for duty, Conners spoke with his father, who told him that his military service was hurting the Department. Deputy Chief Conners told his son that he had to choose between serving as a police officer and serving as a solider and that "the Department" believed that his military leave was excessive. Conners reported for duty as ordered. On October 15, 2007, he returned to the Department.

Conners was next ordered to attend a military drill on November 17, 2007. When he presented his orders to the Department, Chief Rosa instructed him to take a vacation day. Conners did so.² On November 29, 2007, Conners received an email from Lt. Balboni stating that the excess days taken for military service had been deducted from his annual personal, sick, and vacation time. Conners told Lt. Balboni that the Department was again violating USERRA. Balboni told Conners to speak to Chief Rosa. Conners told Rosa that he was being discriminated against because no other Billerica police officer who had taken military leave had lost personal, sick, or vacation time as a result.³ Chief Rosa stated that Conners' military service was a voluntary matter and therefore not covered by USERRA. Conners replied that USERRA did not distinguish between involuntary and voluntary service. Chief Rosa did not budge.

Conners then spoke with Capt. Daniel Doyle and John Harring, the police union president. Conners sent a follow-up email to Doyle, Harring, Chief Rosa, and Balboni, again explaining his understanding of the Department's obligations under USERRA. Conners stated that he was being retaliated against for taking military leave and requested a meeting with Department lawyers. He received no response.

Conners' military Commander, Lt. Sam Gross, contacted Chief Rosa in an attempt to resolve the dispute. Chief Rosa rejected Lt. Gross's argument that the Department was violating USERRA. Conners then contacted the Employer Support for Guard and Reserve (ESGR) and asked for assistance. An ESGR representative, Joachim-Ingo Borowski, arranged a conference call with Chief Rosa and Lt. Balboni. As a result, Chief Rosa reinstated Conners' lost personal time.⁴ Borowski believed that the matter had been resolved.

In February of 2008, Conners contacted the U.S. Department of Labor (DOL). On February 28, 2008, Reginald Dupuis, a DOL representative, visited the Department to hold a "technical assistance" meeting.⁵ Dupuis informed Chief Rosa and Lt. Balboni that the Department's actions had violated USERRA. Dupuis additionally found that both of Conners' grievances (the 2005 requirement to use vacation time or swap shifts, and the 2007 denial of leave benefits) had been satisfactorily addressed.⁶ DOL closed Conners' USERRA complaint with a "no merit" notation. On May 7, 2008, Conners sent Balboni an email stating that he had learned that other Town employees on active duty had been awarded the differential between their military pay and their base pay. The Town ultimately paid Conners the difference.

On May 7, 2008, Conners was assigned to a bicycle escort of middle school students taking part in a "Minuteman Walk." A citizen complained after observing that Conners and another officer were wearing Department-issued baseball caps instead of bicycle helmets. The citizen felt that the caps set a bad example for the children. Sgt. Jerry Roche spoke to Conners and his partner and told them to wear helmets in the future. Conners believed that the issue was resolved. However, a few days later, Sgt. Roche informed Conners that "they" were forcing him to write a letter of reprimand.

On June 24, 2008, Conners received a letter written by Sgt. Roche dated June 1, 2008.⁷ Capt. Doyle later told Conners that the letter had been placed in a "working file."⁸ Conners asked why he had not been shown the letter before it was placed in his file. A few days later, Doyle gave Conners a copy of the letter.⁹ Conners contends that the letter was issued in retaliation for his taking military leave. He states that Chief Rosa conceded that other officers had worn patrol caps while riding bicycles and had not received reprimands.¹⁰

At some point in late 2008, Chief Rosa initiated an internal investigation after receiving a citizen's complaint that Conners had used excessive force while making an arrest. According to Conners, two lieutenants and one captain expressed their opinion that the allegations were not credible. Although Conners received a copy of a letter sent by Chief Rosa to the complainant informing him that the matter would be closed without further action, Conners states that he has never been provided with an "official" statement to that effect. Conners claims that the investigation was undertaken in retaliation for his taking military leave.

Conners reports that as a result of the defendants' discriminatory acts, he has been unable to sleep properly, has lost his appetite, and suffers nausea and vomiting spasms. He is also apprehensive about reporting to work some mornings for fear that he will be singled out for discipline.

Conners seeks compensation for the day of vacation time lost because of his attendance at the military drill on November 17, 2007. In addition to damages for emotional distress, he seeks reimbursement for the hours that he spent collecting documents in support of his complaints to JAG, ESGR, and DOL, and for his attorney's fees.¹¹

DISCUSSION

Summary judgment is appropriate where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "A `genuine' issue is one that could be resolved in favor of either party, and a `material fact' is one that has the potential of affecting the outcome of the case." Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

1. USERRA

a. Denial of a Benefit

USERRA prohibits discrimination in employment on the basis of military service. It provides, in pertinent part, that

a person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an

...