Yee v. Mass. State Police

• Citation: 481 Mass. 290,121 N.E.3d 155
• Decision Date: 29 January 2019
• Docket Number: SJC-12485
• Parties: Warren YEE v. MASSACHUSETTS STATE POLICE.
• Court: United States State Supreme Judicial Court of Massachusetts

481 Mass. 290

121 N.E.3d 155

Warren YEE

v.MASSACHUSETTS STATE POLICE.

SJC-12485

Supreme Judicial Court of Massachusetts, Suffolk..

Argued October 1, 2018

Decided January 29, 2019

The following submitted briefs for amici curiae:

Ben Robbins & Martin J. Newhouse, Boston, for New England Legal Foundation.

Simone R. Liebman & Constance M. McGrane, Boston, for Massachusetts Commission Against Discrimination.

Naomi Shatz, Boston, for Fair Employment Project, Inc., & others.

Jonathan J. Margolis (Beth R. Myers also present), Boston, for the plaintiff.

Jesse M. Boodoo, Assistant Attorney General, for the defendant.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

GANTS, C.J.

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 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 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, 446 Mass. 270, 273, 843 N.E.2d 1070 (2006). The plaintiff, Warren Yee, was born in Hong Kong in 1954 and later immigrated and became a citizen of the United States. He identifies as a Chinese Asian-American. Yee began working as a police officer for the Massachusetts District Commission (MDC) in 1980. He was promoted to the position of sergeant in 1986, and was later transferred to the Massachusetts State police in 1992, after the State police merged with the MDC. In 1998, he was promoted to the position of lieutenant. From 2005 until at least the time this complaint was filed, he has served as a lieutenant shift commander at the headquarters of State police Troop H, located in the South Boston section of Boston.

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 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 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., 423 Mass. 652, 663, 672 N.E.2d 1 (1996), the judge declared that a plaintiff who brings an employment discrimination claim "must show an adverse employment action that materially changes objective aspects of the plaintiff's employment." In the context of this case, the judge determined that, for Yee to avoid summary judgment, there needed to be sufficient evidence in the record to allow a jury reasonably to conclude that Yee "lost money when the State [p]olice declined to transfer him to Troop F," either by showing that "a lieutenant at Troop F automatically earned more money than a lieutenant at Troop H," or by presenting "statistical data showing that lieutenants at [Troop F] routinely earn more money than lieutenants at [Troop H]." The judge found that the only evidence of a "potential earnings differential between Troop H and Troop F" was the additional income that Lydon earned from overtime and details when he transferred from Troop H to Troop F, and his corresponding drop in these earnings after he returned to Troop H. The judge concluded that this evidence was insufficient to defeat summary judgment because it was "entirely anecdotal, concerning the experience of only one of the nine potential comparators who became lieutenants at Troop F in the relevant period," and because Yee had offered no evidence that would permit a reasonable jury to conclude that Yee "would have worked the same paid details and just as much overtime" as Lydon did.

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, 463 Mass. 316, 318, 974 N.E.2d 34 (2012). In determining whether an employee's discrimination claim survives a motion for summary judgment, we apply the three-stage, burden-shifting framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ( McDonnell Douglas ). See Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680-681, 46 N.E.3d 24 (2016). We discuss each stage of the McDonnell Douglas framework in turn.

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 action.⁵ See Trustees of Health & Hosps. of Boston, Inc. v. Massachusetts Comm'n Against Discrimination, 449 Mass. 675, 681-682, 871 N.E.2d 444 (2007) ( Trustees of Health & Hosps. ); Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382, 396, 50 N.E.3d 778 (2016). The State police contends that Yee failed to meet this burden only because the denial of a lateral transfer from one troop to another is not an adverse employment action.

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 an employer discriminates against an employee 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, 71 Mass. App. Ct. 460, 469, 883 N.E.2d 316 (2008) ("a successful claim of employment discrimination requires a showing that the plaintiff has been subjected to some adverse action that is material"). Therefore, in defining the phrase, we are essentially defining the remedial scope of c. 151B. Because the Legislature has directed that c. 151B "shall be construed liberally for the...