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Balzarini v. Town of Rockport

United States District Court, D. Massachusetts

October 24, 2018

JASON BALZARINI, Plaintiff,
v.
TOWN OF ROCKPORT, JOHN HORVATH, and MARK SCHMINK, Defendants.

          MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTION TO AMEND

          F. DENNIS SAYLOR, J.

         This is 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.

         Balzarini 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.

         In July 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 seq.

         Defendants 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.

         I. Background

         A. Factual Background

         The following facts are as set forth in the record and are undisputed except as noted.[1]

         Jason Balzarini is a patrol officer with the Town of Rockport Police Department. (FAC ¶ 2).

         John 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).

         In 2002, before joining the Rockport Police, Balzarini enlisted in the Army National Guard. (FAC ¶ 6). He was promoted to sergeant in 2008. (Id.).

         In 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).

         In 2009, Balzarini was promoted to staff sergeant in the National Guard. (FAC ¶ 6).

         In 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).

         On 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. ¶¶ 8-9).

         As part 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.).

         Chief McCarthy retired on October 31, 2014. (Vieira Aff. ¶ 3). James Mulligan was then appointed interim police chief on December 1, 2014. (Id. ¶ 4).

         On 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. (Id.).

         In 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).

         On July 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).

         Horvath 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).

         In 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).

         On 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.).

         On 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).

         On 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).

         On 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).

         After 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).

         On May 29, 2016, Lt. Schmink sent an e-mail to Balzarini praising his work in preparing an operation plan for Memorial Day. (Def. Ex. 14).

         Sometime 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.).

         Also 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).

         On 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. ...


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