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23-P-455 Appeals Court
CITY OF NEWTON vs. COMMONWEALTH EMPLOYMENT RELATIONS BOARD.1
No. 23-P-455.
Suffolk. January 12, 2024. – May 22, 2024.
Present: Vuono, Wolohojian, & Ditkoff, JJ.
Commonwealth Employment Relations Board. Employment, Retaliation. Labor, Police, Unfair labor practice. Practice, Civil, Prima facie case, Presumptions and burden of proof. Municipal Corporations, Police, Unfair labor practice. Public Employment, Police, Transfer. Police, Assignment of duties.
Appeal from a decision of the Commonwealth Employment Relations Board.
Jaclyn R. Zawada, Assistant City Solicitor, for the plaintiff. Lan T. Kantany for Commonwealth Employment Relations Board. Alan H. Shapiro for the intervener.
WOLOHOJIAN, J. This appeal involves a claim of retaliation
for engaging in union activity, in violation of G. L. c. 150E,
1 Newton Police Superior Officers Association, MassCOP Local 401, intervener. 2
§ 10 (a) (3).2 More specifically, the Newton Police Superior
Officers Association, MassCOP Local 401 (union) claims that a
sergeant in the Newton police department (department), John
Babcock, was transferred from a day shift in the traffic bureau
to a night shift in the patrol division in retaliation for his
participation in protected union activities. After a three-day
evidentiary hearing, a hearing officer of the Department of
Labor Relations (DLR) found that the union failed to prove that
the city of Newton (city) would not have transferred Babcock but
for his protected activity. Instead, the hearing officer found
that the city's primary reason for transferring Babcock was his
unprofessional conduct in having a verbal altercation with a
subordinate, together with earlier issues concerning Babcock's
performance. The union appealed the hearing officer's decision
to the Commonwealth Employment Relations Board (CERB). CERB
reversed on the ground that the city failed to meet its burden
of producing evidence of a nonretaliatory reason for the
transfer. In other words, CERB concluded that the city failed
to meet its burden of production at the second stage of the
2 "It shall be a prohibited practice for a public employer or its designated representative to . . . [d]iscriminate in regard to hiring, tenure, or any term or condition of employment to encourage or discourage membership in any employee organization." G. L. c. 150E, § 10 (a) (3). The parties proceed in this appeal on the assumption that § 10 (a) (3) applies to this case, and therefore, we do not consider whether that assumption is correct. 3
familiar burden-shifting framework used in cases where, such as
this one, there is no direct evidence of retaliatory motive.
See Trustees of Forbes Library v. Labor Relations Comm'n, 384
Mass. 559, 561 (1981) (Forbes). On that basis, CERB did not
reach the question whether the union met its burden of proving
that Babcock would not have been transferred but for
retaliation.
The city has appealed CERB's decision and raises three
issues. First, the city argues that at the first (prima facie)
stage of the burden-shifting analysis, the union was required to
establish, among other things, that Babcock had a generally good
work record, see Forbes, 384 Mass. at 565 n.4, and that the
union failed to meet that burden. Second, the city argues that
Babcock's transfer from a day shift to a night shift was not an
adverse employment action because it carried an increase in pay.
Third, the city argues that CERB erred in finding that the city
failed to prove that its lawful reason for the transfer was a
motive for Babcock's transfer.
We conclude that CERB correctly determined that the union
was not required to prove a generally good work record at the
prima facie stage of a retaliation claim under G. L. c. 150E.
The correct legal standard at the prima facie stage of a c. 150E
retaliation claim is that (1) the employee engaged in concerted
protected activity, (2) the employer knew of that activity, (3) 4
the employer took an adverse employment action, and (4) there
was a causal connection between the protected activity and the
adverse action. But we also conclude that CERB mistakenly
applied the wrong standard for determining what constitutes an
"adverse employment action" in c. 150E cases. We also conclude
that CERB erroneously overlooked the significance of the terms
of the collective bargaining agreement (CBA) between the city
and the union in determining whether Babcock's transfer to a
night shift constituted an "adverse employment action." In
claims brought under c. 150E by public employees who are union
members, such as this one, the terms and conditions of
employment must be assessed in the context of those conditions
as negotiated in the CBA. Here, Babcock received the negotiated
pay raise associated with assignment to a night shift as
provided for in the CBA, and he did not prove any other change
to the terms and conditions of his employment. Although we do
not foreclose the possibility that a union member's reassignment
from a day shift to a night shift (or vice versa) may, upon an
appropriate factual showing, constitute an adverse employment
action, no such showing was made here. Finally, CERB erred in
concluding that the city failed to meet its stage two burden of
production on the ground that the city did not come forward with
direct evidence of the reasons for Babcock's transfer. The city 5
could -- and did -- meet its stage two burden by producing
circumstantial evidence. We accordingly reverse.
Background. With the exception of one finding regarding
the amount of the pay differential (which we set out in the
margin),3 neither side argues that any of the hearing officer's
extensive written findings was not sufficiently supported by the
evidence. See Brookfield v. Labor Relations Comm'n, 443 Mass.
315, 321 (2005). Indeed, our own independent review of the
hearing transcript and exhibits confirms that all of the hearing
officer's subsidiary findings (with the exception of that same
finding) were amply supported by the evidence adduced during the
three-day evidentiary hearing she conducted. Those findings
were based not only on the evidence, but also on the hearing
officer's observation of the demeanor of the witnesses. With
that background in hand and reserving certain facts for later
discussion, we summarize the hearing officer's findings,
supplemented by certain undisputed facts, pertaining to the
charge that Babcock was transferred to the patrol division in
retaliation for his union activity.
3 The hearing examiner found that Babcock could earn more working details on the day shift than he could earn by virtue of the eight percent night shift pay differential. There was no evidence to support this finding, a matter that both CERB and the union implicitly acknowledge. 6
Babcock was hired as a patrol officer in 1987, and some
time thereafter, he was assigned to the traffic bureau. On
October 6, 2009, Babcock was promoted to the rank of sergeant in
the traffic bureau,4 where (among other things) he supervised
safety officers, traffic officers, and civilian employees who
worked within the traffic bureau. Over time, Babcock worked
different shift schedules. That said, from 2016 to 2018,
Babcock worked a 7 A.M. to 3 P.M. shift, Monday through Friday,
with weekends off.
The traffic bureau handles special events, such as road
races, as well as road construction projects. From 2012 to
2017, Babcock was involved in contacting the detail office to
staff officers for police details relating to special events.
However, in 2017, after there were issues with this arrangement,
the chief of police, David MacDonald, appointed Lieutenant
Daniel Walsh to oversee all details.5 As part of this change,
Babcock was instructed to direct detail staffing questions to
4 The union represents superior officers of the department, including sergeants, lieutenants, and captains, with the exception of those serving as executive officer and internal affairs officer, who are exempt from the union's bargaining unit.
5 In August 2016, the executive officer at the time reported that Babcock had over the years involved himself in all areas of details, which had proved problematic. As such, the department organized details in such a way that Walsh handled construction details, while Babcock handled details for special events. 7
Walsh and not to offer opinions on the staffing of details.
Notwithstanding these instructions, Babcock had a conversation
with a contractor about an upcoming line painting project.
Babcock contended that the conversation pertained solely to
whether the street should be closed during the painting project.
On the other hand, the contractor said that Babcock made a
recommendation regarding the number of detail officers to use
for the project. Walsh informed Babcock that Babcock's staffing
plan unnecessarily increased the number of detail officers and
had a negative effect on the day shift. In addition, Walsh
reminded Babcock that recommendations for detail staffing were
to come to him (Walsh). In November 2017, Babcock was reminded
again of these instructions, although it is not clear what
prompted the need for the reminder at that time.
Approximately four months later, on March 9, 2018, Parking
Control Officer Dorothy Crowley requested to speak with Babcock,
who was her supervisor. Crowley wished to speak with Babcock
about a past incident relating to the vandalization of her
bicycle, which she believed was caused by someone at the
department. She also alleged that her coworkers had vandalized
her car by carving "rat" into a side panel. During the
interaction, both Babcock and Crowley raised their voices and
became upset. The verbal altercation was loud enough that it
could be heard in some detail by those who were present in the 8
traffic bureau at the time and disrupted the workplace.
Ultimately, Crowley left in tears and was placed on
administrative leave. She has never returned to work.
When informed of this episode, the police chief instructed
Lieutenant George McMains to inquire further and to collect
statements from all officers who had been present when the
exchange between Babcock and Crowley took place. McMains
followed this instruction and collected numerous statements
including ones from Babcock and Crowley. Crowley stated that
she asked Babcock why he had not written a report about the past
incidents, and he then raised his voice and yelled at her,
"Don't put this on me, that was your decision, not mine."
Crowley went on to write that she told Babcock, "I can't go on
working where I don't feel safe and without help from my bosses.
I'm working in a police station. I should feel safe here and I
don't." Crowley told Babcock that she was "done and could not
take this anymore."
McMains wrote an investigative report, dated March 23,
2018, in which he concluded that Babcock had violated the
department's code of conduct concerning courtesy6 because, as a
6 See Newton Police Department Code of Conduct, section V. Professional Conduct and Responsibilities, 14 ("Courtesy -- All employees shall be courteous and considerate to the public and respectful to their superior officers, to their fellow officers and to all other members of the department. They shall be 9
supervisor, he could have conducted the discussion in private
out of earshot of other employees but had instead allowed the
disruptive behavior to take place with no regard for the fact
that other employees could hear the interaction.
One week later, on March 30, 2018, the police chief wrote a
letter of reprimand to Babcock in which he stated:
"All Newton Police Department employees are expected to be professional and respectful to all other employees. Supervisors are sometimes required to have difficult conversations with subordinates and conduct themselves with professionalism and decorum. In these types of occurrences a supervisor should have these conversations in a private setting out of the earshot of other employees. The Traffic Bureau offers several places a private conversation could be conducted. In this incident you made no effort to relocate your conversation with PCO Crowley and engaged in a contentious exchange. Your actions in this matter are conduct unbecoming a Newton Police superior officer and merit[] discipline."
The police chief found that Babcock violated the courtesy
provision of the code of conduct and stated that Babcock was
being issued a letter of reprimand as a result.
Three weeks later, on April 23, 2018, Babcock was informed
that he was being transferred from his day shift in the traffic
bureau to a night shift in the patrol division. When Babcock
asked the police chief why he was being transferred, the chief
responded that "he was the Chief, therefore he can do what he
wanted" and that the "conversation was over." The change to a
tactful in the performance of their duties and are expected to exercise the utmost patience and discretion"). 10
night shift resulted in Babcock receiving an eight percent pay
increase known as a "shift differential."
We now turn to Babcock's union activities. There is no
doubt that Babcock was deeply involved in union activities at
all pertinent times. From 2014 to 2016, Babcock was vice
president of the union, and he was part of the contract
bargaining team. In addition, Babcock was involved in many
communications between the union and the police chief regarding
labor-management issues. On occasion, the police chief's
comments could be construed to reflect antiunion sentiment. We
recite the hearing officer's specific findings on these matters
next.
1. Travel time. During a 2015 negotiating session, a
discussion about extending a travel time benefit to superior
officers became heated and the police chief said to someone
other than Babcock, "if you don't like what you are receiving
now as a supervisor, then go back to the patrolman union," or
words to that effect. The following year, on July 14, 2016,
when the parties were again negotiating over the contract, the
topic of travel time was again discussed. Babcock and others
informed the police chief that they believed he (the chief) was
trying to impermissibly implement a new policy regarding travel
time outside of contract negotiations. Babcock handed the
police chief a copy of the city's issues for negotiations of the 11
successor contract, which included travel time. The police
chief became upset, but he took the document outside of the room
to make a copy. When he returned, he said that he rejected the
document and threw it at Babcock, resulting in Babcock receiving
a paper cut. Babcock insisted on an apology, and the police
chief ultimately offered to Babcock the statement that "[I]
get[] hot, I get wordy, and I'm sure I didn't mean what I did"
or words to that effect.
The issue of travel time remained unresolved during the
summer of 2016, when Babcock demanded that the police chief
rescind changes to travel time for superior officers. The
police chief refused, taking the position that the union had
been notified of the change three years earlier and then failed
to request to bargain. In 2017, the union petitioned the joint
labor management committee to resolve outstanding contract
issues, and ultimately the parties met with a tripartite-
interest arbitration panel, which issued an award in 2019.
2. Grievances. In late September 2016, the police chief
ordered that an officer submit to a psychological test. At the
officer's request, Babcock was present at the meeting with the
police chief, and he argued with the chief over his authority to
order the test. The union filed a prohibited practice charge,
and Babcock testified for the union at the DLR hearing. After
the union filed the charge, Babcock and the police chief had 12
several conversations about the underlying matter. During one
of those conversations, the police chief told Babcock that the
union should stop fighting the matter and that Babcock was being
an "obstructionist."
In October 2017, Babcock filed two grievances on behalf of
the bargaining unit, alleging that the police chief violated the
CBA when he failed to hire a sergeant for a detail. On March
30, 2018 -- less than one month before Babcock was transferred
to the night shift in the patrol division -- Babcock filed a
grievance on behalf of all superior officers alleging that the
police chief violated the overtime, special leave, and hours of
work articles of the CBA.
As we noted at the outset of this opinion, the union filed
a charge of prohibited practice with the DLR alleging that
Babcock's transfer to the night shift in the patrol division
violated G. L. c. 150E, § 10 (a) (3), because it was taken in
retaliation for his protected union activities. After a three-
day evidentiary hearing, the hearing officer ruled in favor of
the city, making the extensive findings we have set out above.
The hearing officer acknowledged that Babcock was transferred to
the patrol division less than one month after he had filed a
grievance on behalf of another officer. But the hearing officer
concluded that timing alone was not enough to support a finding
that the city was unlawfully motivated in transferring Babcock. 13
Instead, the hearing officer credited the city's position that
Babcock was transferred to the patrol division because of the
altercation with Crowley the month before the transfer, as well
as Babcock's repeated failures within the previous year to
comply with the revised procedures regarding details. The
hearing officer gave particular weight to the fact that it was
McMains -- not the police chief -- who concluded that Babcock
had conducted himself in an unprofessional manner and that there
was absolutely no evidence that McMains harbored antiunion
animus or a negative opinion of Babcock. The hearing officer
also noted that there was no evidence to suggest that the police
chief influenced McMains in any way. In addition, the hearing
officer noted that it was reasonable for Babcock to be
transferred from the traffic bureau, where he had demonstrated
unprofessional conduct toward his subordinates, to the patrol
division, where he could have a fresh start as a supervisor.
The union appealed to CERB. CERB did not reject any of the
subsidiary factual findings made by the hearing officer.7
7 The hearing officer's findings were not immune from review by CERB:
"Nonetheless, all subsidiary findings made by the [hearing officer] are entitled to some deference by [CERB], and those findings that are based on credibility determinations by the [hearing examiner] are entitled to substantial deference. Where it rejects such findings, [CERB] must provide a considered articulation of the reasons underlying 14
Instead, CERB reversed the hearing officer's decision on the
ground that –- in the absence of direct evidence of the reason
Babcock was transferred to the night shift -- the city had
failed to meet its burden of production at the second stage of
the burden-shifting framework used for establishing retaliation.
This appeal followed.
Discussion. Where, as here, there is no direct evidence of
a retaliatory motive, a claim of retaliation under G. L.
that rejection. The deference required in review of factual findings will permit [CERB] to conduct a meaningful review of a [hearing officer's] findings to determine whether they are significantly against the weight of the evidence, or . . . suspect in light of the consistency and inherent probability of testimony. The requirement of an explanation will help ensure that [CERB] will carefully consider any decision to reject a [hearing examiner's] findings and that it will provide a reviewing court with an adequate explanation on which to determine whether that rejection was warranted. This test must be considered against the fundamental rule rooted in due process that a reviewing body ordinarily may not reverse a credibility judgment made by the administrative or judicial officer who actually heard the testimony of the witness and found him or her to be credible. It is inappropriate to ask [an appellate panel who has not heard the witness] to reverse a judge's findings involving credibility, since he saw the witnesses and we did not. As we have explained, a determination of credibility made by one who actually heard a witness is close to immune from reversal on appeal except on the most compelling of showings." (Quotations, footnote, and citations omitted.)
Hollup v. Worcester Retirement Bd., 103 Mass. App. Ct. 157, 160– 161 (2023). See Morris v. Board of Registration in Med., 405 Mass. 103, 109, cert. denied, 493 U.S. 977 (1989) (reviewing board should not disregard trier of fact's findings on credibility). 15
c. 150E, § 10 (a) (3), may be proved by following the burden-
shifting framework used for similar claims asserted under G. L.
c. 151B. See Forbes, 384 Mass. at 561-562 (burden of proof
should be allocated according to procedure described in G. L.
c. 151B cases). Under this burden-shifting paradigm, "the
employee must bear the ultimate burden of persuasion, but may
rely on a prima facie showing to shift to the employer a limited
burden of producing evidence." Id. at 562. At the first stage,
the plaintiff has the burden of producing evidence that the
plaintiff engaged in "protected activity" that "was plainly
visible to the employer," id. at 565 n.4, "that [the plaintiff]
suffered some adverse action, and that 'a causal connection
existed between the protected conduct and the adverse action.'"
Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C.,
474 Mass. 382, 406 (2016), quoting Mole v. University of Mass.,
442 Mass. 582, 591-592 (2004) (retaliation under G. L. c. 151B).
"Proof of a prima facie case shifts to the employer the
responsibility to . . . state a lawful reason and produce
supporting facts indicating that this reason was actually a
motive in the decision." Forbes, supra at 566. "The employer's
burden following a prima facie showing of [retaliation] is only
a responsibility to produce evidence. Once the employer has
proposed a reason and presented supporting facts, the
presumption of [retaliation] is dispelled." Id. At the third 16
stage, the employee has the burden to "prove by a preponderance
of evidence that the [employer's] asserted lawful reason was not
the real reason" for the adverse employment decision. Id. The
employee bears the over-all burden of proving that the adverse
employment action would not have been taken "but for"
retaliation. Id. at 565. "[I]f the evidence is in balance, the
employer must prevail." Id. at 566.
Against this well-established framework, we consider the
city's three arguments on appeal.
1. Stage one -- proof of "generally good work record."
The city argues that, at the prima facie stage, the union bore
the burden of proving that Babcock had a "generally good work
record." The argument is based on note 4 in Forbes, which
states that a "prima facie showing in an unfair labor practice
case might include proof that an employee had a generally good
work record, that he had engaged in protected activity, and that
this activity was plainly visible to the employer" (emphasis
added). Forbes, 384 Mass. at 565 n.4. The court reached this
nebulous statement by analogy to the prima facie showing
required under McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). But McDonnell Douglas was a race discrimination case --
not a retaliation claim -- and our cases have made clear that
"[a] claim of retaliation is separate and distinct from a claim
of discrimination." Verdrager, 474 Mass. at 405. 17
In cases of retaliation (whether under State or Federal
law) a plaintiff need not prove a "generally good work record"
at the prima facie stage. See Psy-Ed Corp. v. Klein, 459 Mass.
697, 707 (2011), quoting Mole, 442 Mass. at 591-592 ("to make
out a prima facie case of retaliation [under G. L. c. 151B], the
plaintiff must show that 'he engaged in protected conduct, that
he suffered some adverse action, and that 'a causal connection
existed between the protected conduct and the adverse action'");
Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169, 175
(1st Cir. 2015) (for Title VII retaliation claim, prima facie
case requires proof that plaintiff "undertook protected
conduct[,] her employer took a material adverse action against
her[,] [a]nd a causal nexus exists between elements one and
two"). Thus, whatever the Forbes court may have meant when it
said that a prima facie case of retaliation "might" include
proof that the employee had a generally good work record, we are
confident that the court did not intend to impose an obligatory
additional element of proof on the employee at the prima facie
stage of a retaliation claim.
To conclude otherwise would have the undesirable
consequence of making an employee's burden at the prima facie
stage of a retaliation claim under G. L. c. 150E more onerous
than the burden an employee bears under G. L. c. 151B. See
Verdrager, 474 Mass. at 406, quoting Mole, 442 Mass. at 591-592. 18
There is nothing to indicate that the Supreme Judicial Court
intended note 4 of Forbes to have that counterintuitive effect.
Indeed, to the contrary, the Forbes court held that "the rules
governing the burden of proof in sex discrimination cases should
apply in unfair labor practice cases as well," Forbes, 384 Mass.
at 567, thus signifying that the burdens under both statutes
should be the same. Our conclusion is further buttressed by the
fact that in note 4, the court used the word "might" (signifying
potentiality or possibility), and avoided the word "must"
(signifying a mandatory requirement). See Black's Law
Dictionary 992, 1019 (6th ed. 1990) ("might" means something is
possible; "must" has mandatory effect).
Nonetheless, we acknowledge that a small number of cases
since Forbes have repeated the language of note 4 in a way that
could potentially suggest a different reading. In Southern
Worcester County Regional Vocational Sch. Dist. v. Labor
Relations Comm'n, 386 Mass. 414, 420 (1982), the Supreme
Judicial Court noted that the plaintiff schoolteachers had
proved generally good work records as part of their proof of a
prima facie case of retaliation. In Babcock v. Labor Relations
Comm'n, 14 Mass. App. Ct. 650, 652 n.2 (1982), the language of
note 4 was quoted without further discussion in a note.
Similarly, the language of note 4 was included in a note of
School Comm. of Boston v. Labor Relations Comm'n, 40 Mass. App. 19
Ct. 327, 329 n.5 (1996), not only without elaboration but also
at odds with its own recitation of the required elements at the
prima facie stage in the body of the opinion. None of these
three cases examined the language of note 4 in any detail. And
none of these cursory subsequent case references persuades us
that the Supreme Judicial Court intended note 4 to impose an
additional element of proof on a G. L. c. 150E plaintiff at the
prima facie stage to establish a "generally good work record."
Accord School Comm. of Boston, 40 Mass. App. Ct. at 329 (1996)
(elements of retaliation claim under c. 150E); Babcock, supra at
651-652 (1982) (same).
2. Stage one -- adverse employment action. The city
argues that transferring Babcock to a night shift in the patrol
division did not constitute an adverse employment action given
that it came with an increase in pay. The phrase "adverse
employment action" does not appear in G. L. c. 150E, "but we use
the phrase to determine when an act of discrimination against an
employee [in 'hiring, tenure, or any other term or condition of
employment'] may be remedied under" c. 150E. Yee v.
Massachusetts State Police, 481 Mass. 290, 295 (2019). "Where
an employer discriminates against an employee but the
discriminatory act falls short of being an 'adverse employment
action,' c. [150E] affords the employee no remedy for the
discrimination." Id. at 295-296. "[A]n action taken by an 20
employer is an 'adverse employment action' where it is
'substantial enough to have materially disadvantaged an
employee.'" Id. at 296, quoting Psy-Ed Corp., 459 Mass. at 707-
708.
"'Material disadvantage for this purpose arises when objective aspects of the work environment are affected.' . . . The disadvantage must be objectively apparent to a reasonable person in the employee's position; 'subjective feelings of disappointment and disillusionment' will not suffice."
Yee, supra at 296-297, quoting King v. City of Boston, 71 Mass.
App. Ct. 460, 468 (2008), and MacCormack v. Boston Edison Corp.,
423 Mass. 652, 663 (1996).
A lateral transfer may constitute an adverse employment
action under G. L. c. 150E if an employee can show that there
are material differences in "any term or condition of
employment." G. L. c. 150E, § 10 (a) (3). See Yee, 481 Mass.
at 297. Because the terms and conditions of public employees
who are union members are the product of required negotiation
between the municipality and the union, see G. L. c. 150E, § 6,
the determination of whether there has been a material change in
the terms or conditions of employment of a public employee
sufficient to constitute an adverse employment action must be
assessed against the provisions of the CBA. See Yee, supra at
299 n.8; Somerville v. Commonwealth Employment Relations Bd.,
470 Mass. 563, 572-573 (2015). CERB mistakenly overlooked this 21
important aspect of a retaliation claim under c. 150E.8 See
G. L. c. 150E, § 10 (a) (3).
Here, the disadvantage of working a night shift versus a
day shift was a matter of negotiation between the city and the
union, and the CBA contained a specific provision requiring that
sergeants such as Babcock receive an increase in pay known as a
"night shift differential" when assigned to a night shift.9
Babcock received the bargained-for pay differential when he was
transferred; accordingly, he suffered no adverse employment
action as measured against the terms of the CBA.
Nonetheless, CERB concluded that a reasonable person in
Babcock's shoes would view a "sudden involuntary transfer" from
a day shift with weekends and holidays off to a night shift with
a rotating schedule to be a "material and objective change in
terms and conditions of employment." To support this
conclusion, CERB cited to dicta in two Federal cases that a
8 Chapter 151B claims are not confined to public employees who are union members whose employment is the subject of a CBA.
We note that the statutory language concerning the remedial scope of c. 151B is not exactly the same as that for c. 150E; c. 151B protects against retaliatory changes to an employee's "compensation or in terms, conditions or privileges of employment." G. L. c. 151B, § 4 (1).
9 The version of the CBA contained in the appellate record refers to a seven percent night shift differential, but the hearing examiner and CERB found that that the differential was eight percent, a figure that neither side disputes. 22
lateral transfer from a day shift to a night shift (or vice
versa) might constitute an adverse employment action even if it
involves no reduction in pay.10 See Freedman v. MCI Telecomm.
Corp., 255 F.3d 840, 844 (D.C. Cir. 2001); Ginger v. District of
Columbia, 477 F. Supp. 2d 41, 50 (D.D.C. 2007), aff'd, 527 F.3d
1340 (D.C. Cir. 2008), cert. denied, 555 U.S. 1101 (2009).
However, CERB overlooked important language and distinctions in
those cases. Specifically, CERB overlooked that such a lateral
transfer may be an adverse employment action if "other changes
in terms, conditions, or privileges followed from the transfer."
Freedman, supra at 844. In Freedman, there was evidence that
the transfer interfered with the plaintiff's education. Id. In
Ginger, there was evidence that the plaintiffs lost their night
shift pay differential, lost daytime detail opportunities, lost
part-time work, and incurred additional childcare expenses.
Ginger, supra at 49-50.
That is not the situation here. Although Babcock contends
that his transfer to the night shift disadvantaged him because
he could earn more money on the day shift by working details
than he would receive from the night shift differential, there
was no evidence of this. Indeed, CERB itself acknowledged that
10Both cases were decided aversely to the employees on dispositive motions. 23
there was no evidence that Babcock sustained a monetary loss as
a result of the transfer.
Instead, Babcock's testimony of the disadvantage of the
night shift was that
"[it] was a whole change of lifestyle, so for a few extra dollars it really didn't put me at ease. I can make up the money on details if I was really interested in the money. It was more a normal life schedule and weekends off was more important, family life, than getting an extra eight percent every night."
We, of course, do not minimize the importance of family life or
the effect that a change in work schedule may have on it. But
that is not the question here, which instead turns on whether
the union established an objective material change in the terms
and conditions of Babcock's employment. In this context, it is
also important to take into account the inherent authority of
police chiefs to assign officers to duties and schedules as they
see fit to preserve public safety. See G. L. c. 41, § 97A;
Framingham v. Framingham Police Officers Union, 93 Mass. App.
Ct. 537, 542-543 (2018). In short, the union failed to
establish an objective and material effect on the terms or
conditions of Babcock's employment.
Our conclusion should not be read to mean that a change in
shift from day to night (or vice versa) may never be an adverse
employment action. We simply conclude that because the union
failed to establish either any deviation from the terms of the 24
CBA regarding night shifts or any other objective and material
effect on the terms and conditions of Babcock's employment, one
was not proved here.
3. Stage two -- employer's burden of production. Although
not necessary to the outcome of this appeal, we take this
opportunity to discuss the stage two burden of production since
it was the basis upon which CERB reversed the decision of the
hearing officer. As we have already stated, the employer's
burden at stage two is one of production, not of persuasion.
See supra at . CERB understood this burden to require that
the city produce direct evidence of the reason Babcock was
transferred to a night shift in the patrol division. In other
words, CERB concluded that the city could not meet its stage two
burden of production based only on circumstantial evidence.
This is incorrect as a matter of law. See Fowler v. Labor
Relations Comm'n, 56 Mass. App. Ct. 96, 100 (2002) (direct
evidence not required to meet stage one burden of proof for
G. L. c. 150E claim). Provided there is credible evidence from
which a reasonable inference may be drawn to support the
employer's articulated reason for the employment action, the
employer's burden of production at stage two is met. Cf. School
Comm. of Boston, 40 Mass. App. Ct. at 335-336 (lack of direct
evidence was so complete that no reasonable inference could be
drawn). 25
Here the city's position was that Babcock was transferred
out of the traffic bureau after he engaged in a disruptive
altercation with a subordinate in that bureau. The city also
pointed to Babcock's history of noncompliance with the new
system governing traffic details -- which was a function of the
traffic bureau. There was contemporaneous documentation of both
sets of issues. To be sure, there was no contemporaneous
documentation giving the reason for Babcock's transfer; the
police chief did not give Babcock any explanation for the
transfer when Babcock inquired, and he did not testify at the
evidentiary hearing. But the timing of the events, combined
with the hearing examiner's belief that McMains (who conducted
the investigation into Babcock's altercation with Crowley)
testified truthfully, and the lack of any evidence that McMains
harbored antiunion sentiment, were sufficient to create a
reasonable inference to support the city's articulated reason
for the transfer. Although a contrary inference also reasonably
could have been drawn given Babcock's involvement in union
activities around the same time, and comments by the police
chief that could be (but were not required to be) construed to
reflect antiunion views, the evaluation of competing reasonable
inferences is not the task at stage two of the burden-shifting
framework, but rather at stage three. As we have already said, 26
the stage two burden is not one of persuasion, simply
production.11
Conclusion. Because the union failed to meet its burden to
prove an adverse employment action, we reverse the decision of
CERB.
So ordered.
Because CERB concluded that the city had failed to meet 11
its stage two burden of production, CERB did not reach the stage three analysis. It did, however, summarily state that were it to reach stage three, it would decide it in favor of Babcock. We need say nothing more about this aspect of CERB's decision than that it does not satisfy the standard for reviewing findings and credibility determinations of the hearing officer, who was the trier of fact. See note 7, supra.