Alves v. City of Gloucester
| Decision Date | 29 March 2022 |
| Docket Number | CIVIL ACTION NO. 18-10654-MPK |
| Parties | Clifford ALVES, Jr., and Troy Simoes, Plaintiffs, v. CITY OF GLOUCESTER, The Gloucester Police Department, and Police Chief Leonard Campanello, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Richard Cullin Chambers, Jr., Chambers Law Office, Lynnfield, MA, Adam B. Sloane, The Law Office of Adam Sloane, Boston, MA, for Plaintiff Clifford Alves, Jr.
Joseph Spinale, Medford, MA, Richard Cullin Chambers, Jr., Chambers Law Office, Lynnfield, MA, Adam B. Sloane, The Law Office of Adam Sloane, Boston, MA, for Plaintiff Troy Simoes.
Allison Lyng O'Connell, Leonard H. Kesten, Thomas R. Donohue, Brody, Hardon, Perkins, & Kesten LLP, Boston, MA, for Defendant City of Gloucester.
Leonard H. Kesten, Thomas R. Donohue, Brody, Hardoon, Perkins & Kesten, Boston, MA, for Defendant The Gloucester Police Department.
Neil Rossman, Rossman & Rosman, Peabody, MA, for Defendant Police Chief Leonard Campanello.
ORDER ON DEFENDANT CITY OF GLOUCESTER'S MOTION FOR SUMMARY JUDGMENT (#79).
Clifford Alves, Jr., and Troy Simoes are employed by the City of Gloucester as police officers and previously served in the active duty and reserve components of the United States Armed Forces. In the operative, first amended complaint ("FAC"), Alves and Simoes allege that the City of Gloucester and Police Chief Leonard Campanello violated the Uniformed Services Employment and Reemployment Act ("USERRA"), 38 U.S.C. §§ 4301 - 4335 in Count I (Alves) and Count II (Simoes), and violated 42 U.S.C. § 1983 in Count III (Alves) and Count IV (Simoes). (#21 ¶¶ 157-164.)2
The City and Campanello previously moved to dismiss the FAC under Fed. R. Civ. P. 12(b)(6). (##24, 26.) Plaintiffs opposed the motions. (#28.) On January 18, 2019, the court denied the motions to dismiss Counts I and II, finding that the FAC plausibly stated USERRA claims as to both Alves and Simoes. (#37 at 8-13.) Partly because defendants belatedly raised an argument that the USERRA claims preempt the § 1983 claims, the court denied the motions to dismiss Counts III and IV without prejudice to renewal. Id. at 14.
The City and Campanello subsequently moved for judgment on the pleadings as to Counts III and IV under Fed. R. Civ. P. 12(c), again raising the argument that the USERRA claims preempt the § 1983 claims. (##64, 65.) Plaintiffs opposed. (#66.) The court deferred ruling, and the motion was denied without prejudice to renewal after decision on anticipated motions for summary judgment. (##68, 75.)
On February 10, 2021, the City moved for summary judgment. (##79-81, 89.)3 Plaintiffs oppose. (#86.) For the reasons set out below, the City's motion for summary judgment (#79) is allowed in part and denied in part.
The City filed a statement of undisputed facts with attachments. (#81.) In response, plaintiffs disputed three of the City's facts and added further disputed facts and attachments. (#86.) In reply, the City addressed one of plaintiffs’ disputes and added further attachments. (#89.) The City did not respond to the additional facts that plaintiffs provided in their statement. Where supported by the record and in the absence of a response from the City, the court will determine that material facts presented by plaintiffs as being disputed do, in fact, create a genuine dispute for the purposes of summary judgment. See Evergreen Partnering Grp., Inc. v. Pactiv Corp. , 832 F.3d 1, 15 n.2 (1st Cir. 2016) ().
Plaintiffs’ opposition memorandum sets forth additional facts not included in their statement of additional facts. See, e.g. , #86 at 6-10. Including additional facts in an opposition brief is contrary to this district's local rules of summary judgment, which require "[a] party opposing the motion [to] include a concise statement of the material facts of record as to which it is contended that there exists a genuine issue to be tried, with page references to affidavits, depositions and other documentation." Local Rule 56.1. "Such rules are designed to function as a means of ‘focusing a district court's attention on what is—and what is not—genuinely controverted.’ " Cabán Hernández v. Philip Morris USA, Inc. , 486 F.3d 1, 7 (1st Cir. 2007) (quoting Calvi v. Knox County , 470 F.3d 422, 427 (1st Cir. 2006) ). "Anti-ferret rules are intended to reduce the burden on trial courts and ‘prevent parties from unfairly shifting the burdens of litigation to the court.’ " Advanced Flexible Circuits, Inc. v. GE Sensing & Insp. Techs. GmbH , 781 F.3d 510, 520-521 (1st Cir. 2015) (quoting Cabán Hernández , 486 F.3d at 8 ). "Given the vital purpose that such rules serve, litigants ignore them at their peril." Cabán Hernández , 486 F.3d at 7.
The court will not consider any facts included in plaintiffs’ opposition but not in their statement of additional facts for purposes of summary judgment. See Schultz v. Kelly , 188 F. Supp. 2d 38, 49-50 (D. Mass. 2002) (), report and recommendation adopted , 188 F. Supp. 2d 38, 40 (D. Mass. 2002) ; see also Latimore v. Trotman , No. 14-cv-13378-MBB, 2021 WL 5759327, at *2–3, 2021 U.S. Dist. LEXIS 231606, at *6 (D. Mass. Dec. 3, 2021) ().
For purposes of summary judgment, the facts are presented in the light most favorable to Alves and Simoes, the nonmoving parties. Dennis v. Osram Sylvania, Inc. , 549 F.3d 851, 855 (1st Cir. 2008). The facts below are undisputed unless otherwise indicated.
Campanello became chief of police of the Gloucester Police Department ("GPD") in 2012 and served in that capacity until September 2016. (#81 ¶¶ 6, 94.) John McCarthy served as a police officer with the GPD for thirty-nine years. Id. ¶ 49. He was appointed to deputy chief of police in 2014 and, after Campanello retired, he served as interim chief. Id. ¶¶ 51-52. McCarthy retired as chief of police in 2019. Id. ¶ 50. Many GPD officers have served in the military, including approximately half of the officers on Alves’ shift. Id. ¶¶ 4, 75. When an officer was deployed, it prevented other officers from taking time off from work. (#86-1 ¶ 1.)
Alves served in the military from 1983 to 1987 in active duty and then was in the reserves until 2006 or 2007. (#81 ¶¶ 1, 3.) He has not served in the military in any capacity since then. Id. ¶ 3. He graduated from the police academy in March 1999. Id. ¶ 2. Alves testified that he experienced harassment by GPD management, including by Campanello. Id. ¶¶ 5-7. The City treated Alves differently than it treated other officers, including officers who were deployed through the military. Id. ¶ 8; #86-1 ¶¶ 2-3. Alves speculates that this difference in treatment may have been due to his position as a union representative. (#81 ¶¶ 8-9.) Alves states that he retired from the military due to harassment from defendants. (#86-1 ¶ 1.) He experienced harassment due to his military service, was treated differently by the GPD because he was a union representative, and was removed from coveted assignments because he filed grievances as a union representative. Id. ¶¶ 4-5, 7. Alves testified that Campanello used to treat union presidents well if they did not file grievances. Id. ¶ 8; #86-2 at 14. He also testified that Campanello reprimanded some officers for engaging in certain conduct but did not reprimand others. (#86-1 ¶ 6; #86-2 at 12.)
Other officers made disparaging comments to Alves about his military service. For example, they mocked his service, complained that they could not get time off because of his service, denied him the opportunity to participate in military ceremonies, suggested that he was only hired by the GPD because of his service, and that they hoped he would return from his deployment in a body bag. (#86-1 ¶¶ 9-11, 13.) A City official told Alves that his deployment to a war zone had been a vacation and that he therefore should not request vacation time. Id. ¶ 12.
On October 1, 2016, the director of the City's Department of Public Works ("DPW"), Michael B. Hale, contacted McCarthy and sent him photographs of a person with a pickup truck dumping leaves and grass outside of a closed composting facility. (#81 ¶¶ 35-36.) Hale wanted the perpetrator, Alves, to be charged with illegal dumping. Id. ¶¶ 37-38. Alves was placed on paid administrative leave so that the department could investigate the dumping, while another person unaffiliated with the GPD was charged with illegal dumping and fined $300. Id. ¶¶ 39-40. Alves told the GPD that he had permission to illegally dump his refuse because, 12-15 years earlier, DPW employees had told him he could. Id. ¶ 41. He cannot recall any other police officers illegally dumping yard waste as he did. Id. ¶ 42. Alves filed a grievance with the union and was ultimately suspended for one day without pay, with a copy of the investigation and disciplinary action placed in his personnel file. Id. ¶ 43.
Alves felt, in general, that McCarthy was "out to get" him but the reason for this was "personal." (#81 ¶ 47; #81-1 at 11-12.) Alves felt that McCarthy held patrol officers like him to a higher standard than supervisory officers, and held them accountable in situations when he did not hold supervisory officers accountable. (#81 ¶¶ 44-45.) McCarthy once said that he saw no reason for patrolmen (like Alves) to make more than retired lieutenants who were on a detail. Id. ¶ 46.
Alves was a police firearms...
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