BRYAN D. OLIVEIRA v. CITY OF NEW BEDFORD & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-177

BRYAN D. OLIVEIRA

vs.

CITY OF NEW BEDFORD & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Bryan D. Oliveira, a former New Bedford

police officer, appeals from the entry of summary judgment by a

Superior Court judge in favor of the defendants on the

plaintiff's claims for retaliation, in violation of G. L.

c. 151B, § 4 (4), and aiding and abetting, in violation of G. L.

c. 151B, § 4 (5).2 We affirm.

1 Joseph Cordeiro and Adelino Sousa.

2The plaintiff alleged retaliation against the city of New
Bedford, Police Chief Joseph Cordeiro, Deputy Chief Paul
Oliveira, and Captain Adelino Sousa. He alleged aiding and
abetting against the three individual defendants. The parties
later stipulated to the dismissal of all claims against Deputy
Oliveira.
Background. We recite the facts in the light most

favorable to the plaintiff, the party opposing summary judgment.

See Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680 (2016).

The plaintiff worked for the New Bedford police department

(department) from 2000 until he resigned in February 2020. At

all times relevant to his complaint, the plaintiff was assigned

to the Bristol County Drug Enforcement Administration Task Force

(task force), which was comprised of Federal agents and local

police officers. The task force office was located in a

separate building from department headquarters.

In November 2017, the plaintiff attended an annual police

officer's ball, where another department officer, Tyrone Jones,

directed several derogatory, homophobic insults toward him. In

April 2018, the plaintiff reported the incident to Chief Joseph

Cordeiro and Deputy Chief Paul Oliveira. Although the plaintiff

was hesitant to file a formal complaint, Chief Cordeiro and

Deputy Oliveira referred the matter for internal investigation.

After the investigation, in July 2018, Chief Cordeiro suspended

Jones for three days without pay for violations of various

department rules and its antidiscrimination and harassment

policy. In August 2018, the plaintiff complained to Chief

Cordeiro and Deputy Oliveira about the length of Jones's

suspension and, during a meeting in September 2018, expressed

concerns that Jones was discussing the suspension with others in

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the department. After the meeting, Deputy Oliveira ordered

Jones to refrain from discussing his suspension or the

plaintiff's complaint with others in the department.

Around December 2018, Captain Sousa's role at the

department expanded so that he supervised both the plaintiff and

Jones. Captain Sousa told the plaintiff he would be required to

work with Jones more often. Despite this conversation, the

plaintiff was never assigned to work with Jones. In January

2019, the plaintiff contacted a detective at the Taunton police

department (Taunton police) to inquire about a lateral transfer.

In May 2019, the plaintiff discussed a lateral transfer with

Chief Cordeiro and the director of human resources for the city

of New Bedford, Sandra Vezina. The plaintiff told Vezina that

he had made a complaint against a coworker for sexual harassment

and that, while a thorough investigation was conducted, he was

not satisfied with the coworker's punishment. Vezina informed

the plaintiff that he could file a complaint with the

Massachusetts Commission Against Discrimination (MCAD)3 or the

Equal Employment Opportunity Commission. Chief Cordeiro told

the plaintiff that he could not transfer for six months due to

3 The plaintiff filed a complaint with MCAD against the city
of New Bedford for sex discrimination, sexual harassment, and
retaliation but withdrew it when he filed his Superior Court
complaint.

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staffing issues, but he agreed to contact the Taunton police to

request that the position be held open until December 2019.

In July 2019, during a meeting with several members of the

Taunton police regarding the plaintiff's transfer request,

Taunton Police Chief Edward Walsh asked the plaintiff about a

conflict between the plaintiff and a supervisor. Ultimately,

the Taunton police did not hire the plaintiff because of

concerns that he was a highly experienced officer who would have

to return to being a junior patrol officer. In August 2019, the

plaintiff reported to Vezina that he did not get the Taunton

police position and that someone at the department had said

something negative about him to Chief Walsh. The plaintiff

asked Chief Cordeiro to contact Chief Walsh, who reported that

he had not communicated with anyone currently in the department

regarding the plaintiff's candidacy. Captain Sousa also stated

that he did not speak to anyone at the Taunton police regarding

the plaintiff's candidacy.

In February 2020, the plaintiff resigned from the

department after he received a transfer to the Attleboro police

department.

Discussion. 1. Standard of review. We review a grant of

summary judgment de novo. See Bulwer, 473 Mass. at 680. We

view the evidence in the light most favorable to the nonmoving

party to determine whether, based on the undisputed facts, the

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moving party is entitled to judgment as a matter of law. See

id.

2. Retaliation. The plaintiff argues that summary

judgment was improper on his retaliation claim. To make out a

prima facie case of retaliation under G. L. c. 151B, § 4 (4),

the plaintiff was required to show (1) his engagement in

protected conduct, (2) the infliction of some adverse action by

the defendants, and (3) a causal connection between the two.

See Osborne-Trussell v. Children's Hosp. Corp., 488 Mass. 248,

260 (2021).

There is no dispute that the plaintiff engaged in protected

conduct by reporting Jones's sexual harassment of him to his

superiors. However, our assessment is the same as that of the

judge: the plaintiff's evidence of adverse employment action

was insufficient for his retaliation claims to survive summary

judgment.

Adverse employment action refers 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

action." King v. Boston, 71 Mass. App. Ct. 460, 468 (2008).

"Material disadvantage for this purpose arises when objective

aspects of the work environment are affected." Id. See Yee v.

Massachusetts State Police, 481 Mass. 290, 297-301 (2019)

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(failing to grant lateral transfer between two police

departments may constitute adverse employment action where

employee can show material differences between roles, such as

opportunity for additional overtime pay). The employee can show

constructive discharge, which is legally regarded as a firing,

if the employer's actions effectively force the employee to

resign because the work conditions are objectively "so difficult

as to be intolerable." GTE Prods. Corp. v. Stewart, 421 Mass.

22, 34-35 (1995).

The plaintiff asserts that the department failed to

investigate his complaints regarding (1) Jones's continued

retaliation after his suspension, (2) Captain Sousa's statements

that the plaintiff would be forced to work with Jones, and

(3) the plaintiff's suspicion that someone at the department

spoke negatively about him to the Taunton police. He contends

that the defendants' failure to investigate or remedy these

behaviors thwarted his transfer to Taunton and resulted in

constructive discharge from his position with the department.

We disagree.

The plaintiff has failed adequately to allege an adverse

employment action. The judge permissibly found, based on the

record, that the plaintiff's allegation that someone from the

department disclosed his conflict with a superior officer was

unsupported by admissible evidence. Neither the failed transfer

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to the Taunton police nor the plaintiff's resignation

constituted an adverse employment action. The position with the

Taunton police would have required the plaintiff to move from a

detective role to a junior patrolman role, where he would have

received lower pay and fewer opportunities. Therefore, the

plaintiff's failure to secure the position did not result in

material disadvantage. See Yee, 481 Mass. at 297-301;

MacCormack v. Boston Edison Co., 423 Mass. 652, 661 (1996)

(plaintiff failed to demonstrate material disadvantage where

"[his] job grade and pay level remained the same").

As to the plaintiff's contention that he was constructively

discharged, Deputy Oliveira contacted Jones in response to the

plaintiff's concerns about Jones's postsuspension conduct and

told Jones to refrain from discussing his suspension with others

in the department. The plaintiff has not alleged that Jones

continued to discuss the incident after this point, nor was the

plaintiff ever forced to work with Jones. When the plaintiff

voiced concerns that someone in the department had spoken poorly

of him to the Taunton police, Chief Cordeiro contacted Chief

Walsh, who stated that no one on his "command staff" -- the

group responsible for assessing the plaintiff's candidacy -- was

contacted by anyone from the department. So, even to the extent

the plaintiff had a sincere belief that he was facing

discrimination, his work conditions fell short of the high bar

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for constructive discharge. Cf. Salvi v. Suffolk County

Sheriff's Dep't, 67 Mass. App. Ct. 596, 606-607 (2006)

(describing long list of factors that cumulatively provided

sufficient evidence of constructive discharge, including months

of homophobic slurs, undesirable assignments, exoneration of and

lack of punishment for perpetrators, and forced contact at work

with perpetrators).

In sum, the plaintiff failed to provide evidence of any

change in his objective working conditions that could be

considered an adverse employment action.4 The judge properly

granted summary judgment on the retaliation claim.5

4 The plaintiff also argues, without support, that the
department's initial refusal to pay him for his unused sick time
when he and another officer sought to leave the department may
have been retaliatory. At the time, the police department and
the New Bedford Police Union (union) were engaged in arbitration
regarding whether the department was required to pay officers
for accrued, unused sick time if they resigned. In June 2021,
the arbitrator ruled in the union's favor, and the plaintiff now
has been paid in full for his unused sick time. The record
contains undisputed evidence that the arbitration and the police
department's position on payouts predated the plaintiff's
resignation.

5 The defendants argue for the first time on appeal that the
alleged acts occurring before March 20, 2019, which was 300 days
prior to the plaintiff's filing with MCAD, were time barred.
See G. L. c. 151B, § 5. Because the timeliness of the complaint
turns on the disputed factual issue of whether the conduct was
"of a continuing nature," it was not appropriate to resolve at
the summary judgment stage or for the first time on appeal. See
Cuddyer v. Stop & Shop Supermkt. Co., 434 Mass. 521, 531, 541
(2001) (issue of which discriminatory acts are continuous and
within statute of limitations is question of fact for jury).

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3. Aiding and abetting. Aiding and abetting is "entirely

derivative of the discrimination claim." Abramian v. President

& Fellows of Harvard College, 432 Mass. 107, 122 (2000). Thus,

a plaintiff must show facts supporting the underlying act of

discrimination or retaliation by a principal offender to survive

summary judgment on the related claim of aiding and abetting.

See id. Because the plaintiff's complaint failed to establish a

prima facie case of retaliation, the defendants were entitled to

summary judgment on the plaintiff's derivative aiding and

abetting claims.

Judgment affirmed.

By the Court (Desmond,
Hershfang & Brennan, JJ.6),

Clerk

Entered: May 7, 2026.

6 The panelists are listed in order of seniority.

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