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Alves v. City of Gloucester

United States District Court, D. Massachusetts

January 18, 2019



          M. Page Kelley United States Magistrate Judge.

         This matter is before the court on defendants City of Gloucester, Gloucester Police Department, and Police Chief Leonard Campanello's Motions to Dismiss (##24, 26) the First Amended Complaint (FAC) (#21) filed by plaintiffs Clifford Alves, Jr., and Troy Simoes. The court has considered the motions, plaintiffs' Joint Opposition (#28), and defendants' Reply (#31). As set out below, defendants' motions are denied.

         I. Facts.

         A. Officer Alves.

         Alves served as member of the 82nd Airborne Division in the United States Army beginning in 1983 and has been a member of Army Reserves since 1987. (#21 ¶ 7.) He began working as a police officer for the City of Gloucester in 1998. (#21 ¶ 8.) Beginning in 1999, Alves experienced difficulty receiving time off from the Gloucester Police Department (GPD) to fulfill his contractual obligations to the Army Reserves. (#21 ¶¶ 9, 11.) Sometime during 2006, Alves returned from the second of three tours of active combat duty in the Middle East, and when he inquired about his accrued vacation, sick, and personal time, the personnel director responded, “Why do you need vacation days? You've been on vacation for a year.” (#21 ¶¶ 14, 15, 17.)

         On February 3, 2014, Alves requested a personal day, but he was called into work to rewrite a report. (#21 ¶¶ 20, 21.) He was not paid overtime for the work, and he had to file a grievance to recover the pay. (#21 ¶¶ 22, 23.) He alleges he was immediately retaliated against when, on his next scheduled rotation, he was pulled from his assigned cruiser and ordered to do remedial report writing. (#21 ¶¶ 24, 25.) In addition, he was removed from the Police Department Training Division. (#21 ¶ 26.) Alves alleges these punishments were retaliation for requesting time off for military service and for filing a grievance. (#21 ¶ 27.)

         In December 2014, Alves scheduled a two-week vacation for April 2015. (#21 ¶ 30.) He alleges that although he was awarded a block of fourteen vacation days, his supervisor changed it to thirteen vacation days and docked Alves the fourteenth day as a personal day. (#21 ¶¶ 30, 31.) Alves alleges that personal days are more valuable than vacation days because they are more flexible. (#21 ¶ 32.) On August 23, 2015, Alves filed a grievance in order to recover the personal day; it was returned, and Alves was docked a vacation day instead. (#21 ¶¶ 28, 33.)

         Alves contends he was retaliated against for filing the August 23, 2015, grievance when his supervisor questioned Alves' response time to a call and opened an investigation into Alves. (#21 ¶ 34.) Although the investigation revealed no wrongdoing on Alves' part, immediately following the investigation, Alves was removed from the Police Department Training Division. (#21 ¶¶ 36, 37.)

         Alves alleges that on October 1, 2015, he was “disproportionately punished” when he was placed on administrative leave and put under house arrest for allegedly dumping leaves and grass at a compost yard. (#21 ¶ 37.) According to Alves, this minor offense is ordinarily punished by city ordinance with a twenty-dollar fine, but he was “intentionally retaliated against and disproportionately disciplined in violation of USERRA”[1] when he received a two-day suspension without pay, was denied permission to seek outside employment during the suspension, and was fined $300.00. (#21 ¶ 38.) Alves alleges other officers, who are not veterans and/or reservists, also dumped leaves in the same location, and the only discipline they received was a written warning from the Department of Public Works (DPW). (#21 ¶ 42.) While on administrative leave, Deputy Chief McCarthy ordered Alves not to contact the DPW. (#21 ¶ 45.) If he had been permitted to contact DPW, Alves asserts he could have obtained evidence that he was permitted to dump leaves and grass at the compost yard. (#21 ¶ 46.) He further alleges that other officers have committed more serious offenses but were not suspended or disciplined. (#21 ¶ 47.)

         In January 2016, Alves was interrogated and reprimanded after Boylston Police Academy Director John Mulloy sent Defendant Campanello a letter of thanks for Alves' instruction at the academy. (#21 ¶¶ 48-52.)

         On April 13, 2016, Alves was involved in a training accident at Fort Devens Firearms Range while working for the Massachusetts Police Training Council as a firearms instructor. (#21 ¶ 53.) That day, he was informed there would be an investigation into the incident and was placed on administrative leave for 102 days until the investigation was completed. (#21 ¶ 54.) The investigation ultimately revealed Alves was not at fault, and the incident was classified as a training accident. (#21 ¶ 60.) Alves alleges that being placed on administrative leave for a training accident is another example of intentional discrimination and harassment in violation of USERRA. (#21 ¶ 57.)

         In addition, on May 13, 2016, Campanello suspended Alves' license to carry a firearm (LTC) and added a “No Outside Employment” clause to Alves' administrative leave, reversing Campanello's prior approval of outside employment. (#21 ¶ 62.) Alves alleges Campanello had never revoked or suspended an officer's LTC before May 13, 2016, including after the following: (i) an October 15, 2015, incident where an officer was placed on administrative leave for a substance abuse problem; (ii) a February 2016 incident where a civilian took out a restraining order against an officer; or (iii) a July 2016 incident where an officer admitted he had a substance abuse problem. (#21 ¶ 63.) In addition, Alves asserts Campanello refused to provide him or his union attorney a copy of the report which explained why Alves' LTC was suspended. (#21 ¶ 65.)

         According to Alves, in order to appeal Campanello's LTC revocation decision, Alves was required to go to Gloucester District Court, which is located in the same building as the GPD. (#21 ¶ 66.) However, Alves was warned that he would be arrested for trespassing if he entered the GPD building without being escorted by Deputy Chief McCarthy, thereby making it impossible for him to appeal Campanello's LTC decision without special permission from Campanello. (#21 ¶ 67.)

         While Alves was on administrative leave, Campanello agreed to allow Alves to go on a pre-planned trip. (#21 ¶ 72.) Because he was on administrative leave, Alves alleges he should have been able to take the trip without using vacation time. (#21 ¶ 73.) On August 3, 2016, however, Alves discovered he had been charged four vacation days for the trip. (#21 ¶ 74.) After Alves wrote to Deputy Chief McCarthy inquiring why he had been charged vacation days, Campanello wrote a response directing Alves to seek remedy from the Mayor's office. (#21 ¶ 76.)

         On December 24, 2016, Alves alleges he was harassed by his supervisor over an incomplete police report. (#21 ¶ 79.) Alves alleges his supervisor terminated him from his position as a training officer “despite Alves being one of only four officers in the [GPD] to go through the forty-hour Field Officers Training Course and who has the ...

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