Rebello v. City of New Bedford et al

Filing 39

Judge George A. OToole, Jr: ORDER entered granting 21 Motion for Summary Judgment (Danieli, Chris)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 12-10248-GAO
JOSEPH J. REBELLO,
Plaintiff,
v.
CITY OF NEW BEDFORD and JAMES TROUT,
Defendants.

ORDER
November 13, 2013
O’TOOLE, D.J.
The plaintiff, Joseph J. Rebello, claims that the defendants, the City of New Bedford and
Emergency Medical Services Department Director James Trout, wrongfully terminated his
employment because of his service in the Army National Guard in violation of antidiscrimination and anti-retaliation provisions of the Uniformed Services Employment and
Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4311. The defendants jointly move for
summary judgment (dkt. no. 21) as to those claims. The plaintiff also had claimed that Trout
violated his free speech rights by terminating him because of certain critical statements he made,
but at oral argument on the present motion he abandoned those claims.
I.

Background
There is no genuine dispute as to the following facts. Rebello was employed full-time as

a paramedic field supervisor in the City of New Bedford’s Emergency Medical Services
(“EMS”) Department. The City employed four such field supervisors, two of whom, including
Rebello, were members of the Army National Guard. Only one other employee of the EMS
Department was a member of the military, paramedic Lance Soares. On January 27, 2009,

Rebello informed the City of his impending deployment to active duty for one year, effective
February 1, 2009.
Earlier in January, the State announced that local aid to the City for the last five months
of the fiscal year would be cut by $2.8 million. The City responded by implementing a hiring
freeze and banning capital expenditures, among other things. In addition, the mayor acted to
reduce the City payroll by laying off 176 employees across 25 departments. The City eliminated
a number of positions, including all four field supervisors in the EMS Department. As a result,
all four field supervisors, including Rebello, were laid off at the direction of the mayor. Trout
notified Rebello of his layoff by letter on February 13, 2009. To date, the field supervisor
position has not been reinstated.
II.

Legal Standard
Summary judgment is appropriate where the moving party has shown “that there is no

genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). “In order to overcome a motion
for summary judgment, the non-moving party must put forth specific facts to support the
conclusion that a triable issue subsists.” Vega-Colon v. Wyeth Pharm., 625 F.3d 22, 25 (1st Cir.
2010) (quoting Martinez-Rodriguez v. Guevara, 597 F.3d 414, 419 (1st Cir. 2010)). “On each
issue on which the non-moving party has the burden of proof, that party must present definite,
competent evidence to rebut the motion.” Id. (internal quotation marks omitted). “Neither
wishful thinking . . . nor conclusory responses unsupported by evidence will serve to defeat a
properly focused Rule 56 motion.” Velazquez-Garcia v. Horizon Lines of P.R., Inc., 473 F.3d
11, 15 (1st Cir. 2007) (quoting Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990)). The

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record must be “viewed in the light most favorable to the nonmoving party” and “all reasonable
inferences drawn in favor of the nonmoving party.” Bukuras v. Mueller Grp., LLC, 592 F.3d
255, 261 (1st Cir. 2010).
III.

Discussion
Rebello alleges that the City and Trout violated USERRA’s anti-discrimination and anti-

retaliation provisions by “discriminating against, harassing, punishing, suspending and ultimately
terminating [his] employment” because of his military status and his assertion of rights under
USERRA. (Compl. at ¶¶ 13, 14 (dkt. no. 1).) To prevail in an action under USERRA, a plaintiff
must make “an initial showing . . . that military status was at least a motivating or substantial
factor in the employer action . . . .” Velazquez-Garcia, 473 F.3d at 17 (internal quotation marks
omitted). Once the plaintiff has made this prima facie showing, the burden shifts to the employer
to “prove, by a preponderance of evidence, that the action would have been taken despite the
protected status.” Id.
A.

Discrimination
i.

Termination

To meet his prima facie burden that his military status was a motivating factor in his
termination, Rebello proffers the following evidence: (1) the proximity in time between his
notice of deployment and his termination; (2) some negative comments made by EMS
supervisors about his military activity; (3) the City’s failure to apprise him of his rights under
USERRA; and (4) the City’s refusal to pay him for unused personal days and military leave time.
Even when viewing the record in the light most favorable to him and drawing all
reasonable inferences in his favor, Rebello has failed to present sufficient evidence of
discriminatory motivation. Although it is undisputed that he was terminated only two weeks after

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announcing his upcoming deployment, temporal proximity alone is insufficient. Vega-Colon v.
Wyeth Pharm., 625 F.3d 22, 29 (1st Cir. 2010). The derogatory comments he relies on were
more or less ambiguous, but in any event were few, isolated, and not temporally proximate to his
termination. They are properly regarded as “stray remarks” with little or no probative value. Cf.
Gonzalez v. El Dia, Inc., 304 F.3d 63, 69-70 (1st Cir. 2002); Straughn v. Delta Air Lines, Inc.,
250 F.3d 23, 36 (1st Cir. 2001). Trout’s alleged comment in 2006, even if the content were
indicative of anti-military animus, was too isolated and removed in time to the relevant events to
suggest that military status was a motivating factor in Rebello’s termination, even assuming,
contrary to the factual record, that Trout was a decision-maker. The 2008 comment attributed to
Assistant Director Steven Arruda is similarly isolated, and there is no indication that Arruda
played any role in the termination decision.
Rebello’s remaining allegations, first, that the City did not notify military member
employees of their rights and privileges, and second, that the City did not pay Rebello his unused
personal days and military leave time after he gave notice of his deployment, are not probative of
discriminatory intent. One of his arguments in support of these claims is actually at odds with his
basic contention of discrimination on the basis of military status. He says that he learned that the
City would pay benefits from other employees in the military who had been receiving such
benefits. Plainly, the City was not treating those employees adversely because of their military
status. Nor is the fact that he, for whatever reason, was unaware of the benefits probative of
discrimination against him on the basis of his military status.
Even if he had met his prima facie burden, however, the defendants would still be entitled
to summary judgment because Rebello completely fails to rebut the defendants’ well-supported
contention, undisputed on the summary judgment record, that the City would have terminated

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Rebello if he had not been a member of the uniformed services. See 38 U.S.C. § 4311(c). The
City asserts, and Rebello does not dispute, that there was a massive reduction in the City’s
workforce – 176 positions across 25 departments – because of the unforeseen budget reduction
of $2.8 million. All four field supervisors were laid off, including the two who had no connection
with the military. Moreover, it is not genuinely subject to factual dispute that the layoff decision
was made by the mayor, not the EMS Department. There is absolutely no evidence that the
mayor had any discriminatory intent in selecting the EMS field supervisor position for
elimination.
Finally, Rebello claims that the elimination of his position “despite the fact that [the
defendants] had the obligation to reemploy the Plaintiff in that position when he returned from
active duty” was a “clear violation of USERRA’s reemployment provisions.” (Pl.’s Opp’n to
Defs.’ Mot. for Summ. J. at 14 (dkt. no. 29).) Rebello misunderstands USERRA to immunize
him from termination for any reason while on a leave of absence for military service. Cf. 20
C.F.R. § 1002.42(c) (“[T]he employee is not entitled to reemployment following the period of
service simply because he or she is a covered employee.”). In any event, the question is simply
irrelevant to the question of whether or not the City would have terminated Rebello if he were
not in the military.
ii.

Harassment

Rebello further claims that the defendants violated USERRA by harassing him because of
his military service. (Compl. at ¶ 12.) Assuming in his favor that such a claim is cognizable
under USERRA, Rebello has failed to establish “harassing behavior sufficiently severe or
pervasive to alter the conditions of his employment.” Vega-Colon, 625 F.3d at 32 (citations
omitted) (internal quotation marks omitted). There is no allegation that the stray comments here

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interfered with Rebello’s work performance, subjected him to humiliation or threat of harm, or
otherwise amounted to objectively offensive conduct. As no reasonable factfinder could find in
Rebello’s favor, the defendants are entitled to summary judgment.
B.

Retaliation

Under 38 U.S.C. § 4311(b):
An employer may not discriminate in employment against or take any adverse
employment action against any person because such person (1) has taken an
action to enforce a protection afforded any person under this chapter, (2) has
testified or otherwise made a statement in or in connection with any proceeding
under this chapter, (3) has assisted or otherwise participated in an investigation
under this chapter, or (4) has exercised a right provided for in this chapter.
Rebello has not alleged that he participated in any such activities prior to his termination but
rather bases his retaliation claim solely on the fact of his military service. (See Pl.’s Resp. to
Def.’s Statement of Undisputed Material Facts at ¶ 25 (dkt. no. 28).) Therefore, his claim must
fail, as there are no genuine issues of material fact to be presented to the factfind. Summary
judgment shall enter for the defendants as to these claims.
IV.

Conclusion
For the reasons set forth herein, the defendants’ Motion (dkt. no. 21) for Summary

Judgment is GRANTED. Judgment shall enter for the defendants.
It is SO ORDERED.
/s/ George A. O’Toole, Jr.
United States District Judge

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