Appeals Court Clarifies the Three-Stage Burden Shifting Test in Cases Alleging Retaliation in Violation of G.L. Chapter 150E

In City of Newton v. Commonwealth Employment Relations Board (“CERB”), No. 23-P-455 (May 22, 2024), the Appeals Court has clarified the three-stage burden shifting test that applies in a case alleging retaliation for the exercise of protected rights by a union member where the claim relies on circumstantial evidence of the employer’s retaliatory motive. The clarifications provide important guidance for application of the test in future cases.

Succinctly stated, the union filed a charge alleging that a police officer had been transferred from a day shift in the traffic bureau to a night shift in the patrol division in retaliation for his union activities. After a hearing, the DLR hearing officer ruled that the union failed to meet its ultimate, third stage burden to prove that the police officer would not have been transferred “but for” his protected activity. The hearing officer determined instead that the city employer’s primary reason for the transfer was the officer’s unprofessional conduct in having a verbal altercation with a subordinate together with earlier performance issues.

On appeal by the union, the CERB reversed the hearing officer’s decision. The CERB ruled that the city had failed to meet its second stage burden of producing evidence of a nonretaliatory reason for the transfer. On appeal by the city, the Appeals Court reversed.

The court initially addressed, and rejected, the city’s argument that at the first, “prima facie” stage, the officer was required to establish a “good work record”. It held that this would amount to “an additional element of proof” to the existing first stage requirements that an employee show that they engaged in conduct protected by chapter 150E, that they “suffered some adverse action”, and that there is a “causal connection” between the protected conduct and the adverse action.

The court then honed in on the first stage “adverse action” element. It held that this required an assessment of whether the officer suffered an adverse action as measured by the terms of the applicable collective bargaining agreement. Because the agreement provided that transfer to the night shift was accompanied by an increase in pay, the court concluded that the city and the union had negotiated the asserted disadvantages of the night shift; that there was no “objective material change” in the terms and conditions of the officer’s employment; and, therefore, that there was no “adverse action”. Accordingly, the employee’s case failed at the first stage of the test.

While unnecessary to its decision, the court also addressed the CERB’s conclusion that the city had not satisfied its second stage burden because it had not produced direct evidence of a nonretaliatory motivation. The court stated that the employer’s burden is one of production, not of persuasion, and that at this second stage the employer may rely on circumstantial evidence. It further stated that contemporaneous documentation of the officer’s altercation and his history of noncompliance with new traffic protocols, coupled with the hearing officer’s decision to credit the testimony of the employee who investigated the altercation and the lack of any evidence that this employee was motivated by antiunion animus, were sufficient to meet the city’s second stage burden. Acknowledging that the evidence could have resulted in the opposite inference given the timing of the officer’s union activity and his transfer as well as comments by the chief, the court stated that the resolution of “competing reasonable inferences” is not the task at the second stage.

This decision provides significant illumination of the three-stage test in chapter 150E retaliation claims that do not involve direct evidence of antiunion motivation. Obviously, these cases turn on their specific facts and legal advice should be sought in assessing a given claim.

If you have any questions about the content of this update, please contact us. We are pleased to assist public employers with all issues related to the collective bargaining relationship under chapter 150E.

This update is provided for informational purposes only and should not be considered legal advice.