United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT AND PLAINTIFF'S MOTION TO AMEND
DENNIS SAYLOR, J.
a case of alleged employment discrimination based on military
service. Plaintiff Jason Balzarini is a patrol officer for
the Rockport Police Department and a staff sergeant in the
Massachusetts Army National Guard. Defendant John Horvath is
the Rockport Police Chief. Defendant Mark Schmink is a
Lieutenant in the Rockport Police Department.
joined the National Guard in 2002 and was deployed on active
duty in Afghanistan from 2012 to 2013. He was hired by the
Rockport Police Department in 2008 in a part-time position,
and was promoted in December 2013 to full-time status after
filing a complaint with the Massachusetts Commission Against
Discrimination (“MCAD”) alleging discrimination
based on military service. For the next several years, he
received multiple departmental honors and accolades.
2017, Balzarini was reprimanded and effectively demoted for
what he acknowledged was a failure of
“communication.” In September 2017, he was
disciplined again for the unauthorized firing of a
civilian's weapon. He alleges that both instances of
discipline, along with other examples of workplace hostility,
constitute unlawful discrimination based on his National
Guard service in violation of the Uniformed Services
Employment and Reemployment Rights Act
(“USERRA”), 38 U.S.C. § 4301, et
have moved for summary judgment, and plaintiff has moved to
amend the complaint to add a claim under state law. For the
reasons stated below, the motion for summary judgment will be
granted in part and denied in part, and the motion to amend
will be denied.
following facts are as set forth in the record and are
undisputed except as noted.
Balzarini is a patrol officer with the Town of Rockport
Police Department. (FAC ¶ 2).
Horvath is the current Police Chief of the Rockport Police
Department. (Horvath Dep. at 24). Mark Schmink is a
Lieutenant with the Rockport Police Department. (FAC ¶
3). Lt. Schmink previously served for four years in the
Marine Corps and attained the rank of lance corporal.
(Schmink Dep. at 13).
2002, before joining the Rockport Police, Balzarini enlisted
in the Army National Guard. (FAC ¶ 6). He was promoted
to sergeant in 2008. (Id.).
December 2008, Balzarini was hired by the Rockport Police
Department. (Balzarini Dep. at 11). He was hired as a
Permanent Intermittent Police Officer, which is a part-time
position. (Id.). He was hired by then-Rockport
Police Chief Tom McCarthy. (Id. at 16).
2009, Balzarini was promoted to staff sergeant in the
National Guard. (FAC ¶ 6).
2010, Lt. Schmink recommended Balzarini for assignment to the
Cape Ann Regional Response Team (“CARRT”), a post
Balzarini viewed as desirable. He did so in part because he
felt Balzarini's National Guard experience would be
advantageous. (Schmink Dep. at 119-20).
August 3, 2012, Lt. Schmink issued a warning to Balzarini for
only working 11 out of a required 24 shifts. (Id. at
43). When Balzarini informed Lt. Schmink that he had upcoming
National Guard training, on at least one occasion Schmink
responded to the effect of “How long is this going to
keep going as far as the National Guard?” (Balzarini
Dep. at 34). Previously, Lt. Schmink had also allegedly
discouraged another officer from joining the Coast Guard
Reserves, stating that it would interfere with his
obligations as a police officer. (Andrus Aff. ¶¶
of his National Guard duties, Balzarini was deployed to
Afghanistan from 2012 to 2013. (FAC ¶ 6). While on
active duty, in February 2013, he was bypassed for a
promotion in Rockport to a full-time police officer.
(Id. ¶ 8). Balzarini appealed that decision to
the Massachusetts Civil Service Commission and filed a
complaint with MCAD alleging discrimination based on his
military service. (Id. ¶ 10). Lt. Schmink was
named as a respondent. (Schmink Dep. at 45). A settlement was
reached that resolved both the Civil Service appeal and the
MCAD complaint. (FAC ¶ 12; Balzarini Dep. at 42-43; Def.
Ex. 15 at 7). Under the terms of the settlement agreement,
Balzarini was appointed a permanent full-time police officer
in December 2013. (Id.).
McCarthy retired on October 31, 2014. (Vieira Aff. ¶ 3).
James Mulligan was then appointed interim police chief on
December 1, 2014. (Id. ¶ 4).
January 6, 2015, Acting Chief Mulligan changed how
compensation was provided to officers who were attending
National Guard training. Previously, under Chief McCarthy, an
officer attending Guard training was paid both the full
amount he would have earned while working for the Rockport
Police and the amount paid by the Guard. (Def. Ex. 4 at
54-55; Def. Ex. 6). Acting Chief Mulligan believed that
because the officers were not serving the town during
military training, they were in effect “double
dipping” salaries. (Def. Ex. 6). He stated that the
practice was straining the Rockport Police Department's
budget. (Id.). Acting Chief Mulligan ordered that
for all future training sessions, the town would only pay the
difference between the amount paid by the Guard and the
amount the officers would have been paid had they worked for
Rockport, assuming that the Guard salary was lower.
response, the Rockport Patrol Officers' Union filed a
grievance on behalf of Balzarini and two other officers who
were National Guard members. (Def. Ex. 7). According to
Balzarini, Lt. Schmink stopped being supportive of his Guard
service immediately after the grievance was filed. (Balzarini
Dep. at 52).
7, 2015, Balzarini was assigned as a full-time member of the
Police Department's Honor Guard. (Def. Ex. 8). On Lt.
Schmink's recommendation, he was appointed as supervisor
of the Honor Guard. (Balzarini Dep. at 170).
was appointed Rockport Police Chief on May 18, 2015. (Horvath
Dep. at 26). Chief Horvath was informed by Lt. Schmink that
the change that Mulligan made as to how National Guardsmen
attending trainings were compensated was still in effect.
(Id. at 48-49). Lt. Schmink also provided Chief
Horvath with information concerning the number of days each
officer took for military leave, so that he could include the
figures in his proposed budget to the Town's Finance
Committee and Board of Selectmen and better advocate for more
funding. (Id. at 50-53). According to defendants,
that information was also necessary to help determine how
best to fill the shifts left open by these officers, and
others who were injured on duty or on other types of leave.
(Id. at 62-69).
order to calculate pay accurately for police officers serving
in the National Guard, the Police Department required
documentation of the officers' Guard pay. (Id.
at 77). In addition, to ensure that there would be sufficient
coverage during Guard training, Lt. Schmink requested that
Balzarini and two other officers who were Guardsmen provide
their training schedules. (Schmink Dep. at 94-101).
February 2, 2016, Chief Horvath announced a change to the
department's “time off procedure.” (Def. Ex.
9). The change would permit Balzarini to take one additional
day off each month for his National Guard obligations between
February and June. (Id.). However, to help him
schedule shifts for officers, Chief Horvath requested that
Balzarini provide Lt. Schmink the days he intended to take
off for National Guard training. (Id.).
February 22, 2016, Lt. Schmink requested that Balzarini and
the two other officers in the National Guard provide their
training schedule for 2016, along with paystubs and the names
and contact information for the commanding officers of their
assigned units. (Def. Ex. 10). Lt. Schmink requested that the
documents be provided by March 1, 2016. (Id.).
However, by March 1, all three officers had failed to fully
comply with the request. (Def. Ex. 11). Balzarini objected to
the request, stating that it was unreasonable for the Police
Department to want proof that he attended the training.
(Balzarini Dep. at 73-76).
March 4, 2016, Chief Horvath ordered that Balzarini schedule
a meeting with him to discuss his non-compliance with Lt.
Schmink's request. (Def. Ex. 4 at 62-63; Def. Ex. 12).
Chief Horvath also reiterated Lt. Schmink's order that
Balzarini provide a copy of his 2016 training schedule, a
copy of his most recent National Guard paystub, and the name
and contact information of his commanding officer.
(Id.). On March 6, 2016, Lt. Schmink called
Balzarini's National Guard Commanding Officer, First
Sergeant Thomas Bonner. (Schmink Dep. at 102-03).
March 7, 2016, Chief Horvath and Lt. Schmink met with
Balzarini and an officer named Adam Ludovicz (who was another
National Guardsman). (Balzarini Dep. at 63-63). Chief Horvath
expressed frustration that he had to address this matter,
making statements to the effect of “Where do you think
I have time to be doing this?” and “I have other
stuff to be doing.” (Id. at 62).
the meeting, Balzarini provided his most recent National
Guard paystub, which showed that his hourly Guard pay was
higher than his police pay. (Def. Ex. 13). Therefore, under
the terms of the pay policy put into effect by Mulligan,
Rockport no longer needed to pay Balzarini for his Guard
training. Balzarini then stopped providing the Police
Department with his paystubs because he “was not
receiving offset pay” anymore. (Balzarini Dep. at 85).
Around that time, Chief Horvath objected to Balzarini's
practice of redacting the locations of his training.
(Id. at 129-31).
29, 2016, Lt. Schmink sent an e-mail to Balzarini praising
his work in preparing an operation plan for Memorial Day.
(Def. Ex. 14).
in July 2016, Balzarini hurt his back “a little
bit” while helping to bring an obese man to an
ambulance. (FAC ¶ 18; Balzarini Dep. at 112). He
“reported the incident casually.” (Balzarini Dep.
at 112). The following day, Lt. Schmink and Chief Horvath
asked whether he had suffered an injury while on active duty
in Afghanistan. (Id. at 113). Chief Horvath stated,
“If you can't work here, that's fine, just let
us know and we'll take care of it.” (Id.).
Balzarini responded that he had suffered no injuries that
would prevent him from serving as an officer. (Id.).
sometime during 2016, Chief Horvath assigned Sergeant Timothy
Frithsen to investigate a civilian complaint against
Balzarini concerning a motor-vehicle accident. (Frithsen Aff.
¶ 3). The complaint was filed by a woman named Judith
Szuets. (Id.). Frithsen attempted to locate the
other driver involved in the accident, but was unable to.
(Id. ¶ 5). The case was closed out by Chief
Horvath. (Id. ¶ 10). Afterward, Chief Horvath
reopened the case and again attempted to locate the other
driver. (Horvath Dep. at 218-19). However, he was also unable
to locate the driver, and closed the investigation a second
time. (Id.). Frithsen thought it was unusual for a
police chief to reopen an investigation after it was closed.
(Frithsen Aff. ¶ 12).
August 3, 2016, the arbitrator hearing the Rockport Patrol
Officers' Union's challenge to the pay-policy change
implemented by Mulligan ruled against the town. (Def. Ex.
15). The arbitrator based his decision solely on the ground
that the town had not bargained for the change in practice.