Yee v. Massachusetts State Police , 481 Mass. 290 ( 2019 )

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SJC-12485
WARREN YEE vs. MASSACHUSETTS STATE POLICE.
Suffolk. October 1, 2018. - January 29, 2019.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.
State Police. Anti-Discrimination Law, Employment, Age, Race.
Employment, Discrimination. Public Employment, Police,
Transfer.
Civil action commenced in the Superior Court Department on
April 3, 2014.
The case was heard by Paul D. Wilson, J., on a motion for
summary judgment.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Jonathan J. Margolis (Beth R. Myers also present) for the
plaintiff.
Jesse M. Boodoo, Assistant Attorney General, for the
defendant.
The following submitted briefs for amici curiae:
Ben Robbins & Martin J. Newhouse for New England Legal
Foundation.
Simone R. Liebman & Constance M. McGrane for Massachusetts
Commission Against Discrimination.
Naomi Shatz for Fair Employment Project, Inc., & others.
2
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
1 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, 424 Mass. 758, 763 (1997).
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.
3
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 (2006). The
plaintiff, Warren Yee, was born in Hong Kong in 1954 and later
immigrated and became a citizen of the United States. He
2 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.
3 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.
4
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
Lieutenant Warren Yee speaks Chinese, and he testified
4
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.
5
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
6
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 (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
7
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
(2012). In determining whether an employee's discrimination
8
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 (1973) (McDonnell
Douglas). See Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680-
681 (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 (2007) (Trustees of
Health & Hosps.); Verdrager v. Mintz, Levin, Cohn, Ferris,
Glovsky & Popeo, P.C., 474 Mass. 382, 396 (2016). The State
5 The elements of the prima facie case may vary depending on
the nature of the discrimination claim. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 n.13 (1973); Wheelock College
v. Massachusetts Comm'n Against Discrimination, 371 Mass. 130,
135 n.5 (1976).
9
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
6 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, 400 Mass. 156, 162
(1987) ("Clearly, within the broad sweep of [terms, conditions,
or privileges of employment] falls conduct which creates a
sexually harassing work environment"); Lopez v. Commonwealth,
463 Mass. 696, 707 (2012) (right to equal opportunities for
promotion without discrimination falls within "right to be free
from discrimination in the terms, conditions, and privileges of
employment"). We attempt to do so here, defining these words as
they are commonly used in our case law, albeit recognizing that
the phrase "terms, conditions, or privileges" is "general and
broad, and must be determined on a case by case basis"
(quotation and citation omitted). School Comm. of Newton v.
Newton Sch. Custodians Ass'n, Local 454, SEIU, 438 Mass. 739,
749 (2003). See also Randlett v. Shalala, 118 F.3d 857, 862
(1st Cir. 1997) (same language in Title VII is "pretty open-
ended"). We therefore decline to attach any strict limits to
the definitions we offer.
The "terms of employment" govern the employment
relationship, such as personnel policies, see Weber v. Community
Teamwork, 434 Mass. 761, 780-781 (2001), or contractual
provisions that may be either explicit or implied. See Black's
Law Dictionary 1698-1699 (10th ed. 2014).
The "conditions of employment" may refer to the economic or
financial conditions of employment, see Meritor Sav. Bank, FSB
v. Vinson, 477 U.S. 57, 64 (1986), such as wages and hours,
10
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
(2008) ("a successful claim of employment discrimination
vacation pay, and sick leave, and therefore some may overlap
with both the "terms of employment" and "compensation." See
G. L. c. 151B, § 4 (1). "Conditions of employment" may also
encompass the general environment, atmosphere, or quality of the
work place. See, e.g., Ocean Spray Cranberries, Inc. v.
Massachusetts Comm'n Against Discrimination, 441 Mass. 632, 648
(2004); Gilbert's Case, 253 Mass. 538, 540 (1925); Windross v.
Village Automotive Group, Inc., 71 Mass. App. Ct. 861, 868-869
(2008). For example, the conditions of employment are often
discussed in sexual harassment cases in the context of the
creation of an abusive working environment. See, e.g., Meritor
Sav. Bank, FSB, supra at 67; McKenzie v. Illinois Dep't of
Transp., 92 F.3d 473, 479 (7th Cir. 1996).
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, 467 U.S. 69, 75 (1984). See also Randlett,
supra at 862 (hardship transfers were commonly granted by
employer and therefore were "arguably a 'privilege' of
employment"); Blackie v. Maine, 75 F.3d 716, 726 (1st Cir.
1996).
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., 470 Mass. 563, 570 (2015) (municipal
contributions to retiree health insurance premiums not "term or
condition of employment" subject to mandatory collective
bargaining).
11
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 accomplishment of its
purposes," G. L. c. 151B, § 9, we must define the phrase with
the liberality required to meet the statute's broad remedial
goals. See Depianti v. Jan-Pro Franchising Int'l, Inc., 465
Mass. 607, 620 (2013) ("Employment statutes in particular are to
be liberally construed, with some imagination of the purposes
which lie behind them" [quotation and citation omitted]).
"Cases have employed the phrase 'adverse employment action'
to refer to the effects on working terms, conditions, 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, 71 Mass. App. Ct.
at 468, and cases cited. We have said that an action taken by
an employer is an "adverse employment action" where it is
"substantial enough to have materially disadvantaged an
employee." Psy-Ed Corp. v. Klein, 459 Mass. 697, 707-708
(2011). "Material disadvantage for this purpose arises when
objective aspects of the work environment are affected." King,
supra. The disadvantage must be objectively apparent to a
reasonable person in the employee's position; "subjective
12
feelings of disappointment and disillusionment" will not
suffice. MacCormack, 423 Mass. at 663. Because we focus on a
reasonable person in the employee's position, we examine whether
an employee has suffered an "adverse employment action" on a
case-by-case basis. King, supra at 470, quoting Blackie v.
Maine, 75 F.3d 716, 725 (1st Cir. 1996). A lateral transfer
from an evening to a day shift may be an adverse employment
action to one employee, but be welcomed by another. See Bell v.
Gonzales, 398 F. Supp. 2d 78, 97 (D.D.C. 2005) (whether loss of
overtime constitutes adverse employment action is fact-specific
inquiry because some employees desire to work overtime and
others do not).
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
13
Against Discrimination, 400 Mass. 156, 165 (1987), makes a
decision to choose someone else for the lateral position or
decides not to transfer the employee seeking the transfer to
that position. See Weber v. Community Teamwork, Inc., 434 Mass.
761, 767-769 (2001). And the denial of a transfer to an
employee is undoubtedly "adverse" where it would deprive the
employee of the potential to earn additional "compensation,"
which -- if motivated by discriminatory animus -- G. L. c. 151B,
§ 4, expressly forbids. We thus conclude that where an employee
can show that there are material differences between two
positions in the opportunity for 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. See Harrison v. Boston
Fin. Data Servs., Inc., 37 Mass. App. Ct. 133, 137-138 (1994)
(employee made out prima facie case of discrimination by
asserting, inter alia, that she was not provided with training
and educational opportunities given to white employees).
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
14
amended, 42 U.S.C. § 2000e-2(a)(1) (Title VII).7 See, e.g.,
College-Town, Div. of Interco, Inc., 400 Mass. at 163; Brown v.
F.L. Roberts & Co., 452 Mass. 674, 680 (2008). A number of
Federal courts have expressly held that the denial of
opportunities to work overtime may suffice to support an
unlawful discrimination claim. See, e.g., Garmon v. National
R.R. Passenger Corp., 844 F.3d 307, 314 (1st Cir. 2016)
("decreased overtime opportunities could cause a 'material'
change in the conditions of a plaintiff's employment"); Lewis v.
Chicago, 496 F.3d 645, 654 (7th Cir. 2007) (denial to Chicago
police officer of opportunity to travel to Washington, D.C., to
work detail assignment involving crowd control was adverse
action, not only because she would have been paid overtime for
7 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 42 U.S.C.
§ 1981, which applies the same legal framework as Title VII.
Bhatti v. Trustees of Boston Univ., 659 F.3d 64, 70 (1st Cir.
2011). Title 42 U.S.C. § 1981(a) and (b) similarly prescribes:
"All persons . . . shall have the same right . . . to make and
enforce contracts . . . [including] the enjoyment of all
benefits, privileges, terms, and conditions of the contractual
relationship."
15
that particular assignment, but also because "she lost her
ability to move forward in the component of her career of being
a police officer at recurring large scale public gatherings"
and, in turn, "lost the potential to earn many hours of
overtime" in future); Robinson v. District of Columbia, 275 F.
Supp. 3d 95, 105-106 (D.D.C. 2017) (potential for lost overtime
pay may constitute adverse action where it was known to employer
that employee desired opportunity to work overtime); Bell, 398
F. Supp. 2d at 97-98 (same). See also Mazyck v. Metro. Transp.
Auth., 893 F. Supp. 2d 574, 589 (S.D.N.Y. 2012) (lost
opportunities to earn overtime pay constituted adverse
employment action). Cf. Bush v. American Honda Motor Co., 227
F. Supp. 2d 780, 790 n.8 (S.D. Oh. 2002) (lost opportunity to
receive potential future bonuses or promotions may amount to
adverse employment action).8 It would be a curious result for us
8 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, 548 U.S. 53, 60, 64
(2006). The Supreme Court held that adverse actions under the
antidiscrimination provision are limited to conduct affecting
"compensation, terms, conditions, or privileges of employment,"
id. at 62, but in the antiretaliation context, the challenged
action must only have "dissuaded a reasonable worker from making
or supporting a charge of discrimination" (citation omitted),
id. at 68. In deciding this case, we need not reach the
question whether to apply a different standard to defining
16
to interpret c. 151B to provide less protection against
employment discrimination than Title VII, given that we at times
interpret G. L. c. 151B to provide more protection against
employment discrimination than Title VII, in part because of the
Legislature's direction that c. 151B is to be applied liberally.
See G. L. c. 151B, § 9; Cuddyer v. Stop & Shop Supermkt. Co.,
434 Mass. 521, 536 (2001). There is no such comparable language
in Title VII.
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
adverse employment actions in the retaliation context under G.
L. c. 151B.
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.
17
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, 524 F.3d 160, 165 (2d
Cir. 2008). We conclude that Yee's desire to transfer to a
troop where he had more opportunity to earn additional
compensation through the greater availability of overtime and
paid details is an objective indicator of desirability.9
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
9 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, 71
Mass. App. Ct. 460, 471 (2008), citing Hishon, 467 U.S. at 76-77
-- if the employee could establish that the leadership of a
particular work station will not accept for transfer persons of
a particular protected class under c. 151B.
18
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., 449 Mass. at 683,
quoting Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 45
(2005). "It is meant to be a 'small showing' that is 'easily
made.'" Trustees of Health & Hosps., supra, quoting Chungchi
Che v. Massachusetts Bay Transp. Auth., 342 F.3d 31, 38 (1st
Cir. 2003). To establish a prima facie case, the plaintiff
bears only the burden of production, which is satisfied by
furnishing evidence in support of each element; the burden of
persuasion that an element of the prima facie case has not been
established rests with the defendant on summary judgment, even
though it rests with the plaintiff at trial. Sullivan, supra at
39. As to the evidence proffered by the plaintiff, we view it
in the light most favorable to the plaintiff, accepting all
reasonable inferences favoring the plaintiff that flow from that
evidence. Premier Capital, LLC v. KMZ, Inc., 464 Mass. 467,
474-475 (2013).
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 person who obtained the position was less qualified
19
than she. Trustees of Health & Hosps., 449 Mass. at 682-683.
Here, Yee offered comparator evidence, to show both that he was
denied the lateral transfer because of his race, national
origin, or age, and that the denial of the lateral position was
an adverse employment action because of the comparator's change
in earnings at Troop F.
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.
20
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, 473 Mass. 775, 781 (2016); Christo
v. Edward G. Boyle Ins. Agency, Inc., 402 Mass. 815, 819 (1988).
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
21
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, 474 Mass. at
397, quoting Blare v. Husky Injection Molding Sys. Boston, Inc.,
419 Mass. 437, 441 (1995). The burden of the State police here
is not meant to be onerous. Blare, supra at 442. Even if the
reasons given are arguably suspect, so long as the State police
has produced a lawful reason backed by some credible evidence,
it has satisfied this burden. Matthews v. Ocean Spray
Cranberries, Inc., 426 Mass. 122, 128 (1997). However, its
explanation must not be wholly unbelievable such that an
underlying discriminatory motive is obvious. See Wheelock
College v. Massachusetts Comm'n Against Discrimination, 371
Mass. 130, 138 (1976).
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, 474 Mass. at 397, quoting Blare, 419 Mass.
at 443. Yee may satisfy this burden by offering evidence which,
when viewed in the light most favorable to Yee, is sufficient to
22
convince a reasonable jury that the reasons the State police
offered for transferring Lydon instead of him were not the real
reasons, thereby inviting the inference that discrimination was
the motivating reason. See Verdrager, supra.
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,
376 Mass. 221, 231 (1978) ("[T]he opportunity for unlawful bias
is particularly great in such cases. A most detailed and
careful analysis of the facts is required"). On remand, the
motion judge may decide whether to permit the parties to
supplement the summary judgment record in determining whether
there is a genuine issue of material fact whether the denial of
Yee's request for a lateral transfer was motivated by
discriminatory animus.
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.