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Kane v. Town of Sandwich

United States District Court, D. Massachusetts

August 18, 2015

TIMOTHY JAMES KANE, Plaintiff,
v.
TOWN OF SANDWICH, Defendant

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[Copyrighted Material Omitted]

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          For Timothy James Kane, Plaintiff: Jeffrey M Sankey, LEAD ATTORNEY, Sankey Law Offices, Braintree, MA; Joseph A. Napiltonia, LEAD ATTORNEY, PRO HAC VICE, Law Office of Joe Napiltonia, Franklin, TN.

         For Town of Sandwich, Defendant: Bradford N. Louison, Louison, Costello, Condon & Pfaff, LLP, Boston, MA.

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         MEMORANDUM AND ORDER

         Denise J. Casper, United States District Judge.

         I. Introduction

         Plaintiff Timothy James Kane (" Kane" ) alleges that Defendant Town of Sandwich (" the Town" ) discriminated against him in violation of the Uniformed Service Employment and Reemployment Rights Act (" USERRA" ), 38 U.S.C. § 4301 et seq., and Massachusetts law. D. 29. The Town has moved for summary judgment. D. 36. Kane has moved for leave to file a second

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amended complaint and for partial summary judgment on certain of the Town's affirmative defenses and one of his claims. D. 33; D. 39. For the reasons below, the Court DENIES the Town's summary judgment motion, DENIES Kane's motion to amend his complaint and GRANTS IN PART and DENIES IN PART Kane's motion for partial summary judgment.

         II. Standard of Review

         The Court grants summary judgment where there is no genuine dispute on any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). " A fact is material if it carries with it the potential to affect the outcome of the suit under applicable law." Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). The movant bears the burden of demonstrating the absence of a genuine issue of material fact. Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000); see Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant meets its burden, the non-moving party may not rest on the allegations or denials in his pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), but " must, with respect to each issue on which she would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in her favor." Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010). The Court " view[s] the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor." Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009).

         III. Factual Background

         Unless otherwise noted, the following undisputed material facts are drawn from the parties' statements of material facts and their responses.

         A. Kane Does Not Receive the Permanent Sergeant Position in March 2011

         Kane is a Master Sergeant in the U.S. Air Force Reserve. Pl. Further SOF Resp. to Def. SJ Mot., D. 48 ¶ 1; Def. Resp. to P. SOF, D. 52 ¶ 1. Since 2006, Kane has been employed as a police officer by the Town's Police Department (" Sandwich Police" ). D. 48 ¶ 2; D. 52 ¶ 2.

         The Sandwich Police has had a long history of budgetary shortfalls. D. 48 ¶ 10; D. 52 ¶ 10. The Town's Chief of Police, Peter N. Wack (" Chief Wack" ), has publicly complained to the media that officers serving in the National Guard and Reserves contribute to budgetary woes. D. 48 ¶ 11; D. 52 ¶ 11. When officers are on military leave, the Town must pay overtime wages to non-military officers to cover the shifts of military officers. D. 48 ¶ 12; D. 52 ¶ 12.

         The Town has two types of sergeant's positions: permanent and provisional. D. 48 ¶ 21; D. 52 ¶ 21. Permanent sergeants are filled in accordance with the state civil service system, selected after weighing a candidate's Sergeant's Exam score, an interview and personnel files. D. 48 ¶ ¶ 21-22; D. 52 ¶ ¶ 21-22. Provisional sergeants are chosen by the Town Manager, Bud Dunham, who has always accepted Chief Wack's recommendations. D. 48 ¶ 21; D. 52 ¶ 21. A sergeant earns approximately 20% more than a patrol officer. D. 48 ¶ 190; D. 52 ¶ 190.

         In early 2011, Kane sought a permanent sergeant position. Def SOF, D. 38 ¶ 35; Pl. Resp. to Def. SOF, D. 49 ¶ 35; D. 50-1 (Wack Dep.) at 80:21-23. Kane had attained the highest score on the Massachusetts Civil Service Sergeant's Exam out of all the candidates in 2008. D. 48 ¶ 29; D. 52

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¶ 29. Four individuals served on the promotion panel that considered Kane's candidacy: the Town's Director of Human Resources, Marie Buckner (" Buckner" ), Chief Wack and two Sandwich Police lieutenants. D. 48 ¶ ¶ 26, 30; D. 52 ¶ ¶ 26, 30. The panel's main consideration was the candidates' interviews. D. 48 ¶ 62; D. 52 ¶ 62. The panel did not select Kane for the position. D. 48 ¶ 31; D. 52 ¶ 31. Instead, in March 2011, the panel promoted now Sergeant Joshua Bound (" Bound" ) despite his lower Sergeant's Exam score. D. 48 ¶ ¶ 31-32; D. 52 ¶ ¶ 31-32; D. 38-9 (the Town's official letter explaining Bound's promotion).

         B. Kane Deploys to Iraq

         Concurrently, in January 2011, Kane learned that he would be called to active military service in May. D. 48 ¶ 4; D. 52 ¶ 4. The same month, Kane informed his superior about his upcoming service. D. 38 ¶ 17; D. 49 ¶ 17.

         When a Sandwich Police employee is called to active duty, the Sandwich Police voluntarily pays the employee differential pay: the difference between the employee's lower military pay and his higher civilian pay. D. 38 ¶ 21; D. 49 ¶ 21. This benefit allows the departing employee to earn as much as he would have at the Sandwich Police had he not been deployed. D. 38 ¶ 21; D. 49 ¶ 21. In April or May 2011, Kane met with now Lieutenant Michael Nurse (" Nurse" ) to discuss his differential pay. D. 38 ¶ ¶ 18, 19; D 49 ¶ ¶ 18, 19. Kane told Nurse that his military pay grade was E-6. D. 38 ¶ 19; D. 49 ¶ 19.

         On May 23, 2011, Kane deployed to Iraq. D. 38 ¶ 16; D. 49 ¶ 16. During his deployment, on July 1, 2011, the Air Force promoted Kane to the military rank of Master Sergeant, pay grade E-7. D. 48 ¶ 76; D. 52 ¶ 76. While in Iraq, Kane did not notify the Sandwich Police that his rank and military pay had increased. D. 38 ¶ ¶ 24-25, 47; D. 49 ¶ ¶ 24-25, 47. As a result of Kane's mid-deployment promotion, the Sandwich Police overpaid Kane $2,399.84 because his differential pay was based on the difference between his old military pay grade (E-6) and his civilian salary. D. 38 ¶ 81; D. 49 ¶ 81.

         On December 2, 2011, Kane's deployment ended. D. 38 ¶ 13; D. 49 ¶ 13. Kane returned to the Sandwich Police the same day. D. 38 ¶ 13; D. 49 ¶ 13. When he returned, Kane provided the Town with his military paperwork, including a form that certified his discharge from active duty and showed his rank and date of rank. D. 38 ¶ 43; D. 49 ¶ 43.

         C. The Sandwich Police Investigates Kane in 2012

         During his Iraq deployment, Kane was injured. D. 48 ¶ 127; D. 52 ¶ 127. Upon his return and sometime in 2012, Kane received medical treatment for his service-related injuries. D. 38 ¶ 14; D. 49 ¶ 14. For around six months after his deployment, Kane remained on leave while he recovered. D. 38 ¶ 15; D. 49 ¶ 15; D. 48 ¶ 130; D. 52 ¶ 130. During this time, Kane briefly reported to Hanscom Air Force Base. D. 38 ¶ ¶ 15, 41, 51; D. 49 ¶ ¶ 15, 41, 51.

         Sometime in 2012, the Sandwich Police reviewed Kane's differential pay for his 2011 deployment. D. 38 ¶ 40; D. 49 ¶ 40. That June, in a phone call with Nurse, Kane told Nurse that he had been promoted to E-7 at the end of his deployment, i.e., December 2011. D. 38 ¶ 40; D. 49 ¶ 40. Kane's answer, however, was incorrect. D. 38 ¶ 8; D. 49 ¶ 8. After discussing the issue with Nurse further, Kane acknowledged he had been promoted earlier, in July 2011. D. 38 ¶ ¶ 40, 54; D. 49 ¶ ¶ 40, 54.

         Because Chief Wack believed that Kane had intentionally misled the Sandwich Police about his military promotion, Chief Wack asked the District Attorney ...


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