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Massachusetts High Court Finds Retaliation Claim Viable Even With Increase In Pay

The Massachusetts Supreme Judicial Court (“SJC”) recently held that an employer may be found liable for illegal retaliation in the workplace even where the adverse employment action involved a transfer to a higher-paying position.

In City of Newton v. Commonwealth Employment Relations Board, the SJC upheld an administrative agency’s finding that the City of Newton had unfairly retaliated against a Newton police officer for participating in union-related activities when it transferred the officer to a less desirable work shift. Even though the transfer included an eight-percent increase in pay and complied with the parties’ collective bargaining agreement (“CBA”), the court found that the move constituted an adverse employment action in the context of a retaliation claim.

Although the case involved G.L. c. 150E, the state law governing labor relations for Massachusetts public employers and employees, its holding likely extends to other types of workplace retaliation claims. Thus, the decision serves as a cautionary tale for all employers.

Background

The plaintiff, John Babcock, began working for the Newton Police Department in 1987 as a patrol officer. He worked his way up the ranks, receiving a promotion to sergeant in 2009. From 1996 to 2009, Babcock also served as the president of the union representing the Department’s patrol officers.

In 2012, Babcock applied for, and received, a promotion to a sergeant position in the Traffic Bureau. During his six-year tenure as a traffic sergeant, Babcock worked regular daytime hours, Monday through Friday. He had weekends and holidays off.

In 2016, Babcock became President of the Superior Officers Association (the “Union”), which represents higher-ranked officers within the Department. Babcock’s union-related activities eventually caused him to spar with the Chief of Police, David McDonald. During contract negotiations in 2016, Babcock and McDonald had a heated exchange, in the course of which McDonald reportedly cursed at Babcock and threw a document at him. Further disagreements between Babcock and McDonald followed, involving matters such as leave and overtime policies.

In 2018, Babcock and one of his subordinates, a female parking control officer, had an altercation in the presence of several other officers. McDonald ordered an investigation into the incident. The investigator concluded that Babcock should not have allowed or engaged in disruptive behavior in the presence of other employees.

In response to those findings, McDonald issued a letter of reprimand to Babcock and also transferred Babcock to the Patrol Bureau. In his new position, Babcock received an eight-percent increase in pay, in accordance with the CBA terms, but was required to work nights on a rotating schedule. The new schedule also resulted in Babcock’s having different days off each week and routinely required him to work weekends and holidays.

Procedural History

The Union filed a complaint, arguing that Babcock’s transfer was in retaliation for his union-related activity and thus violated G.L. c. 150E. The hearing officer determined that Babcock’s transfer was an adverse employment action but that the City had rebutted the presumption of retaliation by producing evidence of Babcock’s insubordination and misconduct. Accordingly, the hearing officer concluded that Babcock’s transfer was not in retaliation for his union-based activities.

The parties requested review by the Commonwealth Employment Relations Board (“CERB”). The CERB found that the City had failed to produce evidence to support a reasonable inference that Babcock’s alleged insubordination and misconduct were the reason for the Police Chief’s decision to reassign him. The CERB reversed the hearing officer’s dismissal of the complaint and ordered that Babcock be reassigned to his original position.

On appeal by the City, the Appeals Court reversed the decision. The court ruled that, as a matter of law, because Babcock had received an increase in pay, as required by the CBA, his transfer did not constitute an adverse employment action. Accordingly, the Appeals Court held that the Union had failed to satisfy its burden to show a prima facie case of retaliation.

SJC’s Decision

On further appeal by the CERB and the Union, the SJC reversed the Appeals Court and held that Babcock should be reinstated to his previous position.

The City argued that Babcock’s transfer did not constitute an adverse employment action because Babcock received the bargained-for pay raise under the CBA, and other officers preferred the night shift and its higher pay rate. The SJC rejected this argument: “That the CBA made a transfer from day shift to night shift more palatable by including a pay increase for the latter shift is a factor to consider, but it does not erase the material disadvantage of the transfer as a matter of law.” Indeed, it was Babcock’s position that the increase in pay did not compensate for the disruption to his family life caused by the undesirable work schedule.

The SJC also noted that the adverse employment action test is an objective one: “whether the action has had a ‘material disadvantage’ affecting the ‘objective aspects of the work environment’ that would be ‘objectively apparent to a reasonable person in the employee’s position.’” Applying this standard, the court concluded that Babcock’s involuntary transfer had resulted in a “material disadvantage” for him, even though it came with an increase in pay.

The City also argued that the Union had failed to establish a prima facie case of retaliation because it had not shown that Babcock had an unblemished employment record. The SJC rejected this argument as well, stating that “[n]othing in our jurisprudence supports the proposition that an employer is free to retaliate against an employee for union activities because the employee’s employment record is blemished.”

Implications For Employers

Although the City of Newton case involved a dispute under the Massachusetts labor-relations statute, the SJC’s holding seems likely to have broader implications.

In particular, the SJC made clear that an action taken by an employer can constitute an adverse employment action if it results in a “material disadvantage” affecting objective aspects of the work environment, even if the action also entails a pay increase. This general principle logically extends to retaliation claims under other state and federal statutes, including discrimination, wage-and-hour, and leave laws.

The same is true of the SJC’s rejection of the notion that a plaintiff must have a generally good work record in order to establish a prima facie case of retaliation. The critical issue is the (alleged) causal link between protected activity and an ensuing adverse action, and not the employee’s work history.

Finally, the case illustrates the necessity for employers (and their lawyers) to provide substantial, well-supported evidence to rebut a claim of retaliation.

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Please reach out to one of our experienced employment attorneys if you have questions about the SJC’s City of Newton decision or any related workplace issues.