Yee v. Massachusetts State Police
Yee v. Massachusetts State Police
Opinion
**291 The plaintiff, a lieutenant in the Massachusetts State police, filed suit alleging that he suffered discrimination in violation of G. L. c. 151B, § 4, when he was unjustifiably denied a transfer to a different troop station on the basis of his age, race, or national origin. 1 A Superior Court judge *158 granted the motion of the State police for summary judgment, concluding that the plaintiff had not met his burden of showing that the denial of his request for a lateral transfer was an "adverse employment action," as required to prove an employment discrimination claim under c. 151B. We hold that where there are material differences between two positions in the opportunity to earn compensation, or in the terms, conditions, or privileges of employment, the failure to grant a lateral transfer to the preferred position may constitute an adverse employment action under c. 151B. Because the plaintiff has offered adequate evidence that he would have greater opportunities to earn overtime and obtain paid details in the troop to which he seeks transfer, we vacate the allowance of summary **292 judgment and remand the case for further proceedings. 2
Background
. We set forth the relevant facts in the summary judgment record in the light most favorable to the nonmoving party, which in this case is the plaintiff, reserving some facts for our subsequent discussion of the legal issues.
3
See
Carey
v.
New England Organ Bank
,
In December 2008, Yee requested a transfer to State police Troop F, the unit headquartered at Logan International Airport in the East Boston section of Boston. State police lieutenants earn the same base pay and benefits regardless of station, but Yee testified that he wanted to transfer to Troop F because he "knew that *159 there was better overtime and [paid details] at Troop F." 4 Yee claims to have "taken steps to keep his interest in that transfer known to his superiors continuously since that request was first made."
The State police has no written policy governing transfers of lieutenants. When there is an open position for a lieutenant in a troop, the troop commander nominates a candidate, but the decision whether to approve the nomination rests with the Superintendent **293 of the State police. The troop commander has broad discretion in nominating a candidate for transfer.
During the time period between his initial 2008 request and September 2012, the State police had either transferred or promoted seven troopers to Troop F in the position of lieutenant; all were white males. Five out of those seven troopers were younger than Yee when they became Troop F lieutenants. Yee was never offered a transfer to Troop F and was never interviewed regarding a transfer position.
On September 20, 2012, Yee wrote a letter to the Superintendent and others complaining of discrimination on the basis of his age or ethnic background. On September 23, 2012, two days after the letter was received, a forty-nine year old white male police sergeant in Troop H, Shawn Lydon, was promoted to lieutenant and transferred to Troop F even though he had not requested a transfer to Troop F. Lydon served in Troop F for approximately two years, during which time he earned over $ 30,000 more per year in overtime and detail pay than he had when he served in Troop H. When Lydon was later transferred back to Troop H, his annual overtime and detail earnings dropped by about $ 30,000 per year. After Yee sent his letter complaining of discrimination, at least two other lieutenants apart from Lydon were transferred to or promoted within Troop F; both were white males.
On April 3, 2014, Yee filed a complaint in the Superior Court, alleging that the State police discriminated against him on the basis of race, age, and national origin by failing to transfer him to Troop F. The State police moved for summary judgment, contending that no adverse employment action had been taken against Yee and that, even if there had been, there was no discriminatory animus that motivated the State police's decision not to transfer him.
The judge granted the motion for summary judgment, concluding that the summary judgment record would not permit a jury reasonably to find that Yee "was subjected to an adverse employment action when the State police declined to transfer him laterally from one troop to another." Citing
MacCormack
v.
Boston Edison Co
.,
Yee timely appealed. We transferred Yee's appeal to this court on our own motion to decide whether the denial of his request for a lateral transfer may constitute an adverse employment action under G. L. c. 151B, § 4, and if so, whether the motion judge erred in granting the State police's motion for summary judgment.
Discussion
. Our review on summary judgment is de novo.
LeBlanc
v.
Logan Hilton Joint Venture
,
1.
Adverse employment action
. Under the first stage of
McDonnell Douglas
, Yee bears the burden of producing evidence of a prima facie case of discrimination that would allow a jury to infer that: (1) he is a member of a class protected by G. L. c. 151B; (2) he performed his job at Troop H at an acceptable level; (3) his transfer request was treated differently from that of another person who was not a member of his protected class but otherwise was similarly situated; and (4) the continued denial of his request for a lateral transfer to Troop F was an adverse employment
**295
action.
5
See
Trustees of Health & Hosps. of Boston, Inc
. v.
Massachusetts Comm'n Against Discrimination
,
The phrase "adverse employment action" does not appear in G. L. c. 151B, but we use the phrase to determine when an act of discrimination against an employee "in compensation or in terms, conditions or privileges of employment" may be remedied under c. 151B.
6
Where
*161
an employer discriminates against an employee
**296
but the discriminatory act falls short of being an "adverse employment action," c. 151B affords the employee no remedy for the discrimination.
King
v.
Boston
,
"Cases have employed the phrase 'adverse employment action' to refer to the effects on working terms, conditions,
*162
or privileges that are material, and thus governed by the statute, as opposed to those effects that are trivial and so not properly the subject of a discrimination claim."
King
,
Here, Yee contends that the failure to grant him the transfer was an adverse employment action because Troop F offered more opportunities for overtime and paid details than Troop H and therefore offered him a greater opportunity to increase his over-all compensation, even though his base salary and benefits would be unaffected by the transfer. We have not previously reached the question whether a failure to grant a lateral transfer may constitute an adverse employment action. The failure to grant a lateral transfer is certainly an "employment action" by an employer where an employee with supervisory authority, whose actions we impute to the employer, see
College-Town, Div. of Interco, Inc
. v.
Massachusetts Comm'n Against Discrimination
,
We note that a number of Federal courts have confronted this question and arrived at the same conclusion. In interpreting G. L. c. 151B, we often look to case law construing the analogous Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2(a)(1) (Title VII).
7
See,
*163
e.g.,
College-Town, Div. of Interco, Inc
.,
We reject the argument of the State police that the denial of a lateral transfer may be an adverse employment action only where the transfer would have constituted a promotion. To satisfy the element of an adverse employment action in the prima facie case, it suffices that an employee who is denied a lateral transfer puts forward evidence of any "objective indicator of desirability" that would "permit a reasonable factfinder to conclude that the sought for position is materially more advantageous."
Beyer
v.
County of Nassau
,
The closer question is whether Yee met his burden of producing adequate evidence that Troop F offered greater opportunities for overtime and paid details than Troop H. The only evidence before us, other than Yee's own assertions, is testimony from a single comparator, Lydon, who earned approximately $ 30,000 more per year in overtime and detail compensation during the two years after he left Troop H to work in Troop F, and then earned approximately $ 30,000 less per year after he was transferred back to Troop H. In evaluating whether Yee met this threshold showing, we note that the "initial burden of establishing a prima facie case is not intended to be onerous."
Trustees of Health & Hosps
.,
Generally, comparator evidence is intended to prove discrimination, such as where an employee who claims she was rejected from a job because of discrimination offers evidence that the
**301
person who obtained the position was less qualified than she.
Trustees of Health & Hosps
.,
We recognize that the summary judgment record regarding the difference in potential earnings from overtime and paid details between Troop H and Troop F is rather sparse, where it is limited to the change in earnings of a single comparator, but we conclude that it suffices to yield a genuine dispute of material fact as to this element of the prima facie case of discrimination. Lydon was a close comparator to Yee; he had been assigned to Troop H before being promoted to lieutenant, was transferred to Troop F, and then returned to Troop H. It is theoretically possible that the opportunities for overtime and paid details were the same in Troop H and Troop F, and that Lydon simply availed himself of more of those opportunities when he transferred to Troop F, and then chose not to when he returned to Troop H. But it is a more reasonable inference -- and one to which Yee is entitled at summary judgment -- that Lydon's increase in earnings from overtime and paid details derived, at least in part, from the greater opportunities available in Troop F to work overtime and obtain paid details. And, although the State police was in possession of evidence regarding the earnings from overtime and paid details of the other potential comparators, it did not offer such evidence to satisfy its burden of persuasion that the earnings opportunities were the same in Troop F as in Troop H. Although evidence from a single comparator might prove to be insufficient to prevail at trial, we require only a modest evidentiary showing from plaintiffs to satisfy the prima facie stage of summary judgment. Therefore, we conclude that the judge erred in determining that Yee had failed to meet his burden of showing a prima facie case of discrimination.
2.
Discrimination
. Because the judge granted summary judgment to the State police on the ground that Yee had failed to show an adverse employment action, he never reached the issue whether there was a genuine issue of material fact whether the denial of Yee's request for a lateral transfer was motivated by discriminatory animus. We exercise our discretion to remand the matter to the motion judge to allow him to decide this issue. See
Esler
v.
Sylvia-Reardon
,
**302
On remand, the motion judge will need to apply the second and third stages of the
McDonnell Douglas
summary judgment framework. At the second
McDonnell Douglas
stage, where the employee has successfully made out a prima facie case, "the burden of production shifts to the employer to articulat[e] a legitimate, nondiscriminatory reason" for its decision to take the adverse action (quotation omitted).
Verdrager
,
If the judge concludes that the State police has carried its burden of rebutting Yee's prima facie case with a nondiscriminatory explanation for denying Yee's request for the lateral transfer, the judge will reach the third and final
McDonnell Douglas
stage, where the burden of production shifts back to Yee to "produce evidence that the employer's articulated justification [for the adverse action] is not true but a pretext."
Verdrager
,
Finally, although we have denied Yee's motion to supplement the summary judgment record on appeal, see note 3,
supra
, we recognize that a developed factual record is particularly critical where, as here, wholly subjective procedures are used to determine which candidates receive a lateral transfer. See
Smith College
v.
Massachusetts Comm'n Against Discrimination
,
Conclusion . The order allowing the motion of the State police for summary judgment is vacated, and the case is remanded to the motion judge to determine whether there is a genuine issue of material fact whether discrimination was the motivating reason for the denial of the plaintiff's request for transfer.
So ordered .
General Laws c. 151B, § 4 (1), provides that it is an unlawful practice for an employer to "refuse to hire or employ or to bar or to discharge from employment [an] individual or to discriminate against such individual," on the basis of a protected status such as race or national origin, "in compensation or in terms, conditions or privileges of employment, unless based on a bona fide occupational qualification." The Commonwealth and its political subdivisions, including the State police, are covered by c. 151B.
Bain
v.
Springfield
,
The provision of c. 151B governing age discrimination distinguishes between private sector employers and the government as an employer. The section specifically covering the Commonwealth and its subdivisions is phrased somewhat differently from the section covering private employers. Compare G. L. c. 151B, § 4 (1C), with G. L. c. 151B, § 4 (1B). Section 4 (1C) provides that it is unlawful "[f]or the commonwealth or any of its political subdivisions, by itself or its agent, because of the age of any individual, to refuse to hire or employ or to bar or discharge from employment such individual in compensation or in terms, conditions or privileges of employment unless pursuant to any other general or special law." Because the State police have not alleged that Yee's claim falls outside the scope of this section, we decline to address whether the statute's omission of "discriminat[ion]" would bar a claim for refusal to grant a request for transfer.
We acknowledge the amicus briefs submitted by the New England Legal Foundation; the Massachusetts Commission Against Discrimination; and the Fair Employment Project, Inc., GLBTQ Legal Advocates & Defenders, Greater Boston Legal Services, Jewish Alliance for Law and Social Action, Lawyers' Committee for Civil Rights and Economic Justice, Massachusetts Employment Lawyers Association, the Union of Minority Neighborhoods, and the American Civil Liberties Union of Massachusetts.
The plaintiff has moved to supplement the summary judgment record on appeal. We deny the motion and decide the appeal on the same record available to the motion judge.
Lieutenant Warren Yee speaks Chinese, and he testified that he also wanted to transfer to Troop F because he could "be useful" at the airport, where there were many travelers of Asian descent.
The elements of the prima facie case may vary depending on the nature of the discrimination claim. See
McDonnell Douglas Corp
. v.
Green
,
We often do not distinguish among "terms," "conditions," and "privileges" of employment, or attempt to define them separately. See, e.g.,
College-Town, Div. of Interco, Inc
. v.
Massachusetts Comm'n Against Discrimination
,
The "terms of employment" govern the employment relationship, such as personnel policies, see
Weber
v.
Community Teamwork
,
The "conditions of employment" may refer to the economic or financial conditions of employment, see
Meritor Sav. Bank, FSB
v.
Vinson
,
A "privilege of employment" is an unmandated benefit that, "though not a contractual right of employment," is nonetheless customarily provided by an employer to its employees, and is therefore "part and parcel of the employment relationship [and] may not be doled out in a discriminatory fashion."
Hishon
v.
King & Spalding
,
Our definitions of terms, conditions, and privileges of employment here are limited to the context of enforcement of G. L. c. 151B. We recognize, for example, that pursuant to G. L. c. 150E, § 6, municipalities are required to negotiate with public employee unions with respect to the "terms and conditions" of union member employment. As to the definitions of terms and conditions of employment in that context, we refer to our existing case law. See, e.g.,
Somerville
v.
Commonwealth Employment Relations Bd
.,
Title 42 U.S.C. § 2000e-2(a)(1) provides, in part:
"It shall be an unlawful employment practice for an employer --
"(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin ...."
We also may look to employment cases interpreting
In this analysis, our citations to Federal cases concern discussions of Title VII discrimination claims, as opposed to retaliation claims. A split in the Federal Courts of Appeals existed regarding whether the meaning of an "adverse action" differed between discrimination and retaliation claims under Title VII until the Supreme Court resolved the dispute in
Burlington N. & Santa Fe R. R
. v.
White
,
Additionally, in citing to Federal cases that support Yee's claim that loss of opportunity to earn overtime and paid detail compensation may constitute an adverse employment action, we are aware that another provision of Title VII -- 42 U.S.C. § 2000e-2(a)(2) -- provides that it is an unlawful practice for an employer "to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin" (emphasis added). General Laws c. 151B does not contain a comparable provision expressly referencing "employment opportunities." However, none of the cases discussed herein relies on § 2000e-2(a)(2) or its reference to "employment opportunities." We are therefore satisfied that it is proper to consider Federal Title VII cases that have analyzed the comparable adverse action requirement.
Because Yee argues that the denial of his requested lateral transfer was an adverse employment action primarily because it denied him the potential for additional compensation through overtime and detail pay, we do not address whether the denial of the lateral transfer would have been an adverse employment action had he sought the transfer only to use his Chinese language skills to assist Chinese visitors who use the airport. Nor do we address whether an employee would have a viable discrimination claim -- on the basis of a hostile work environment or a denial of a "privilege" of employment, such as being considered for a customary benefit, see
King
v.
Boston
,
Reference
- Full Case Name
- Warren YEE v. MASSACHUSETTS STATE POLICE.
- Cited By
- 31 cases
- Status
- Published