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Yee v. Massachusetts State Police

Supreme Judicial Court of Massachusetts, Suffolk

January 29, 2019


          Heard: October 1, 2018.

         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.

          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]


         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 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, ...

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