Lapine v. Town of Wellesley, Civil Action No. 95-12233-RCL.

• Decision Date: 07 July 1997
• Docket Number: Civil Action No. 95-12233-RCL.
• Citation: 970 F.Supp. 55
• Parties: Gary W. LAPINE, Plaintiff, v. TOWN OF WELLESLEY, Defendant.
• Court: U.S. District Court — District of Massachusetts

970 F.Supp. 55

Gary W. LAPINE, Plaintiff, v. TOWN OF WELLESLEY, Defendant.

Civil Action No. 95-12233-RCL.

United States District Court, D. Massachusetts.

July 7, 1997.

Paul M. Sushchyk, Berg & Laipson, Worcester, MA, for Plaintiff.

Albert S. Robinson, Grindle, Robinson & Kertzman, Wellesley, MA, James A. Goodhue, Wellesley, MA, for Defendant.

MEMORANDUM AND ORDER ON MOTION OF DEFENDANT, TOWN OF WELLESLEY, FOR SUMMARY JUDGMENT (# 24)

COLLINGS, United States Magistrate Judge.

I. INTRODUCTION

The plaintiff, Gary W. Lapine (hereinafter "Lapine" or "plaintiff"), brings claims under the Veterans' Reemployment Rights Act, 38 U.S.C. §§ 4301-4306, against defendant Town of Wellesley (hereinafter, "the Town" or "defendant"). He seeks reinstatement as a police officer in the Wellesley Police Department and an award of $65,000 for lost pay from the date of his application for reinstatement in 1993. Each party moved for the entry of judgment as a matter of law. Lapine's motion for summary judgment was denied during oral arguments, and the Town's motion is now before the Court for decision.¹

II. FACTS

Before his employment with the Wellesley Police Department, Lapine served on active duty with the United States Army from July 7, 1974 to August 30, 1976. (Memorandum of Defendant, # 24, Lapine Dep. at pp. 15-16). After leaving active duty, Lapine became aware of veterans' rights to reemployment benefits under the Veterans' Reemployment Rights Act. (Id. at pp. 138-139). Beginning on August 30, 1976, Lapine assumed a Reserve commission with the Army, and as of April of 1990, Lapine held the rank of Sergeant and was assigned to the 94th Military Police Company. (Id.; Affidavit of Gary W. Lapine, # 23 at p. 1). Lapine was employed as a police officer by the Wellesley Police Department from May 9, 1977 to May 13, 1990. (Statement of Material Facts, # 21, ¶ 1).

Lapine alleges that during April of 1990 he contacted a military recruiter at the Boston Recruiting Battalion in order to apply for an active duty position as a military recruiter in the Army/Guard Reserve (AGR). (Id., ¶ 6). On April 12, 1990, he also allegedly spoke with his former attorney, Richard Johnson, about his intention "to rejoin the Military on a full-time basis ...". (Defendant's Motion for an Order of Contempt for Failure to Obey a Witness Deposition Subpoena Duces Tecum, # 10, Exh. A).

Lapine wrote a letter of resignation to then Police Chief John K. Fritts on April 30, 1990. In his letter Lapine stated

As you may or may not already realize, I have not been satisfied with the working conditions of the department for several years now. Only the opportunity to secure other employment prevented me from resigning earlier, and possibly, the hopes that conditions would change. However, as you know, the conditions have not changed, nor do you or I expect them to in the future.

Affidavit of Thomas J. O'Loughlin, # 26, Exh. 1. The resignation became effective as of May 13, 1990.

On April 30, 1990, Lapine applied to the Wellesley Retirement Board for the withdrawal of his retirement benefits, which amounted to $31,021.79. (# 24, Lapine Dep. at p. 110). Upon receiving his retirement benefits, Lapine paid approximately $18,000 of the amount to the Internal Revenue Service in satisfaction of a personal tax liability, penalties and interest. (Id. at p. 109). He then placed the remainder of the accrued retirement benefits into a bank and used the money for his daily expenses, including child support. (Id.)

On or about May 7, 1990, Lapine completed and submitted an application for the AGR and an application for active duty for training for members of the U.S. Army Reserve. (# 23, Lapine Aff., Exh. 2). On June 12, 1990, the United States Recruiting Command at Fort Sheridan, Illinois, sent him notice of his active duty assignment. (Id., Exh. 3). On June 20, 1990, Lapine was issued orders to attend active duty for training at Fort Benjamin Harrison, Indiana, for forty days, and subsequently on July 13, 1990, he was issued orders for active duty. (Id., Exh. 4).

Lapine received an honorable discharge from active service in the AGR on August 30, 1993. (Id., Exh. 7). On June 26, 1992, he sent a letter to Wellesley Police Chief Thomas O'Loughlin which expressed Lapine's interest in "... explor[ing] the opportunity or feasibility of reemployment with the Wellesley Police Department." (# 26, Exh. 3). Police Chief O'Loughlin denied Lapine's request for reemployment as a police officer in the Wellesley Police Department on July 6, 1992. (Id., Exh. 4). On the same date, Lapine sent another letter to Police Chief O'Loughlin which requested reemployment under the Veterans' Reemployment Rights Act with the Wellesley Police Department after his current active duty term ended. (# 23, Exh. 8). In a letter dated July 14, 1993, Police Chief O'Loughlin denied Lapine's request for reemployment. (Id., Exh. 9).

III. THE SUMMARY JUDGMENT STANDARD

When considering whether to grant summary judgment, the court must determine whether:

... the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is a genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(c).

In making this assessment, the court must "accept all reasonable inferences favorable to the nonmovant." Int'l Ass'n of Machinists and Aerospace Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 205 (1 Cir., 1996); see also Lawton v. State Mt. Life Assurance Co. of America, 101 F.3d 218, 222-23 (1 Cir., 1996); Borschow Hospital and Medical Supplies v. Cesar Castillo, Inc., 96 F.3d 10, 12 (1 Cir., 1996); Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 253 (1 Cir., 1996); One Nat'l Bank v. Antonellis, 80 F.3d 606, 608 (1 Cir., 1996).

A factual dispute which is neither "genuine" nor "material" will not survive a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In deciding whether a factual dispute is "genuine", the court must determine whether the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id.; see also Serrano-Cruz v. DFI Puerto Rico, Inc., 109 F.3d 23, 25 (1 Cir., 1997); Sanchez v. Alvarado, 101 F.3d 223, 227 (1 Cir. 1996); Roche, 81 F.3d at 253. In weighing whether a factual dispute is "material", the court must examine the substantive law of the case, because "only disputes over the facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see also Vinick v. Commissioner of Internal Revenue, 110 F.3d 168, 171 (1 Cir., 1997); Sanchez, 101 F.3d at 227; Roche, 81 F.3d at 253. "Thus the substantive law defines which facts are material." Sanchez, 101 F.3d at 227 (citing Anderson, 477 U.S. at 247-48, 106 S.Ct. at 2509-10).

Rule 56 does not permit the party opposed to the summary judgment motion to rest upon the mere allegations or denials in its own pleadings. See Int'l Ass'n of Machinists and Aerospace Workers, 103 F.3d at 205 (quoting Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1 Cir., 1992), cert. denied, 507 U.S. 1030, 113 S.Ct. 1845, 123 L.Ed.2d 470 (1993)) ("The core purpose of the summary judgment procedure is to `pierce the boilerplate of the pleadings' and evaluate the proof to determine whether a trial will serve any useful purpose."). Rather, Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which the party will bear the burden of proof at trial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Moreover,

even in cases where elusive concepts such as motive and intent are at issue, summary judgment may be appropriate if the non-moving party rests merely upon the conclusory allegations, improbable inferences, and unsupported speculation.

Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 95 (1 Cir., 1996) (quoting Goldman v. First Nat'l Bank of Boston, 985 F.2d 1113, 1116 (1 Cir., 1993)) (quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1 Cir., 1990)); see also Barbour, 63 F.3d at 37 (quoting Goldman v. First Nat'l Bank of Boston, 985 F.2d 1113, 1116 (1 Cir., 1993)) (quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8, (1 Cir., 1990)). See also Roche, 81 F.3d at 253 (1 Cir., 1996) (quoting Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1 Cir., 1994)) ("`[M]otions for summary judgment must be decided on the record as it stands, not on a litigant's visions of what the facts might some day reveal.'").

IV. DISCUSSION

A. Reservists' Rights Under the Veterans' Reemployment Rights Act

A veteran's right to reemployment was originally codified in the Selective Training and Service Act of 1940. The Act has since been amended and renamed a number of times. In 1948 the Act was updated as the Selective Training and Service Act of 1948. This version was amended in 1951 and renamed the Universal Military Training and Service Act and was then amended again in 1967 as the Military Selective Service Act of 1967. In 1971 the Act was renamed as the Military Selective Service Act. The Vietnam Era Veterans' Readjustment Assistance Act of 1974 recodified the reemployment provisions of the Military Selective Service Act from 50 U.S.C.App. § 459 into 38 U.S.C. § 2021 et seq. In 1991, the reemployment provisions were recodified, without any textual alterations, from 38 U.S.C. §§ 2021-2027 to 38 U.S.C. §§ 4301-4307 in order to preserve numerical continuity.² For the purposes of the case at hand, the 1991 version of 38 U.S.C. §§ 4301-4307 is applicable,³ which by 1993 had come to be...