Supreme Judicial Court Effectively Reverses Appeals Court Decision That Had Addressed the Three-Stage Burden Shifting Test Applicable to Charges Alleging Retaliation for Union Activity Based on Circumstantial Evidence

The Supreme Judicial Court has effectively reversed an Appeals Court decision regarding retaliation claims under G.L. chapter 150E that was issued literally one year earlier to the day.

In City of Newton v. Commonwealth Employment Relations Board (“CERB”), 104 Mass.App.Ct. 203 (2024), the Appeals Court had reversed a decision by the CERB. That decision, in turn, had reversed a DLR hearing officer’s ruling regarding the three-stage burden shifting test that applies to a charge of unlawful retaliation for the exercise of rights protected by chapter 150E where the claim relies on circumstantial evidence. The charge was based on the unilateral transfer of a police officer from the day shift to the night shift, allegedly in retaliation for union activities. The hearing officer ruled that the employee had failed to meet his third stage burden of proof – that “but for” his union activities the officer would not have been transferred – after finding that the City had rebutted the officer’s case at the second stage with evidence of poor work performance.[1]

The Appeals Court reversed the CERB’s decision regarding the first stage requirement that the charging party show an “adverse action” affecting the employee. It did so by ruling that where the officer received a pay increase under the collective bargaining agreement as a result of the transfer, there was no “adverse action” as required. While unnecessary to its decision the court also held that the City-employer as a matter of law had met its second stage burden of showing a legitimate/non-pretextual reason for the transfer. The court’s ruling was based on evidence that the officer had a documented record of an unprofessional altercation with a supervisor and prior noncompliance with protocols, as well as on the hearing officer’s decision to credit the testimony of the investigating officer and the lack of evidence of a retaliatory motive.

The Supreme Judicial Court granted an application for further appellate review. In City of Newton v. CERB, No. SJC-13655 (May 22, 2025) the court has affirmed the CERB and effectively reversed the Appeals Court’s decision. It held that, measured by the “substantial evidence” test, the Appeals Court was required to defer to the CERB’s evaluation of the three stages even though a contrary decision might also “find[] support in the administrative record”.

Applying this standard of review, the court held that the CERB was not obligated to rule that the officer failed to show an adverse action at the first stage simply because his transfer to the night shift resulted in a pay increase under the City’s applicable agreement with the officer’s union. Agreeing that “one factor” in the assessment might be the employer’s compliance with an agreement and the resulting benefit of a pay increase, the court observed that other evidence showed disadvantages in a transfer to the night shift regarding time off and schedule irregularity. The court decided that the CERB plausibly could determine that this was enough to meet the officer’s burden of showing an “adverse action” at the first stage. It also rejected the City’s argument that the officer’s poor performance record mandated a conclusion that he had not satisfied his burden at the first stage, because the charging party is not required “to prove a good work record”.[2]

Moving to the second stage requirement that the employer produce evidence of a legitimate reason for the decision, the court held that the CERB properly determined that the City had not satisfied the employer’s burden at this stage. Again applying the “substantial evidence” test for judicial review, the court found that the City presented no evidence that it took the officer’s prior performance into account when it made the transfer decision and that the CERB properly could find a failure to meet the second stage burden.

This ruling is instructive regarding the standard under which the courts review an agency’s assessment of the three-stage burden shifting test for chapter 150E retaliation claims based on circumstantial evidence. That includes judicial deference to the agency’s latitude in evaluating the evidence at each stage. It also provides guidance as to how a retaliation case can be defended and argued at a hearing.

Obviously, these cases are highly dependent on their specific facts and legal advice should be sought in assessing any 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.

 

 

[1] The hearing officer had found that the officer met his first-stage burden of showing an adverse action but that the City had rebutted this at the second stage by showing a poor work record. After both parties appealed to the CERB, it affirmed the hearing officer’s first stage ruling but reversed her second stage ruling.

[2] The Appeals Court had reached the same conclusion regarding this argument.

 

 

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