Downey v. Johnson

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22-P-106 Appeals Court

KATHRYN DOWNEY vs. EARL JOHNSON1 & another.2

No. 22-P-106.

Suffolk. April 10, 2023. – July 3, 2024.

Present: Milkey, Massing, & Henry, JJ.

Employment, Sexual harassment, Discrimination, Retaliation.
Anti-Discrimination Law, Employee, Sex, Prima facie case.
State Police. Practice, Civil, Summary judgment.

Civil action commenced in the Superior Court Department on
June 15, 2018.

The case was heard by Robert B. Gordon, J., on motions for
summary judgment.

Leonard H. Kesten for the plaintiff.
Erica Morin, Assistant Attorney General, for Department of
State Police.
David J. Officer for Earl Johnson.

HENRY, J. The plaintiff, Kathryn Downey, a former

defensive tactics instructor at the State police academy

1 Individually and in his official capacity.

2 Department of State Police.
2

(academy) appeals from a summary judgment entered in the

Superior Court in favor of the defendants, the Department of

State police (State police) and fellow trooper and academy

instructor Earl Johnson, on Downey's claims of discrimination

and retaliation. See G. L. c. 151B, § 4; Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (Title VII).3 We

vacate that portion of the summary judgment related to Downey's

claims under G. L. c. 151B and Title VII premised on a theory of

disparate treatment. In all other respects, the summary

judgment is affirmed.

Background.4 Johnson and Downey were troopers assigned to

the academy as defensive tactics instructors.5 The two became

romantically involved in 2015. As described further below, the

relationship ended abruptly in June of 2016, as a result of

events that are pertinent to this appeal.

1. The hard drive complaint. Johnson was the defensive

tactics training coordinator responsible for the curriculum. On

3 Downey waived her intentional inference claims below.

4 We recite the facts in the light most favorable to Downey,
the nonmoving party, reserving some details for later
discussion. See Yee v. Massachusetts State Police, 481 Mass.
290, 292 (2019); Noviello v. Boston, 398 F.3d 76, 81-82 (1st
Cir. 2005).

5 Of the thirty or so defensive tactics instructors at the
academy around this time, only three were women, inclusive of
Downey.
3

June 27, 2016, Downey entered Johnson's unlocked office at the

academy to access training materials -- a "not uncommon"

occurrence for Downey and other academy instructors. While

there, she noticed a personal credit card bill on Johnson's desk

that included a charge for a May 31, 2016, hotel stay. Downey

was unsure why Johnson would have needed a hotel room, as

Johnson was on duty that day and had slept at Downey's home that

evening.

When Downey returned to the academy for an overtime shift

later that same day, she went to Johnson's office for a second

time to look for a training checklist. There, she retrieved for

that purpose a portable, external hard drive (hard drive) that

Johnson had attached to his State police computer. Although the

hard drive was Johnson's personal property (and thus used to

store personal materials), Johnson also used it to store work-

related materials and, as such, had regularly allowed his

coworkers access to the hard drive in the past. Downey carried

the hard drive to her assigned workstation, plugged the hard

drive into a State police computer, and began searching for the

training materials that she needed. During her search, Downey

discovered a folder containing sexually explicit photographs and

video footage of, among other things, Johnson masturbating and
4

engaging in sexual activity with other women.6 Downey had never

come across pornography on the hard drive in the past. Downey

copied the files she thought were inappropriate onto a flash

drive. After discussing the contents on the hard drive with

Johnson later that evening, Downey ended their romantic

relationship.

A few days later, Downey found, in her travel bag, an iPad

tablet computer belonging to Johnson that he had asked her to

return. After Johnson indicated that personal photographs of

her might be stored on the iPad, Downey powered it on to check.

Due to the iCloud cloud storage service function on Johnson's

phone, his web activity displayed on the iPad, and Downey saw

that Johnson had been visiting pornographic websites and a

website called "Adult Friend Finder." When Downey confronted

Johnson, he expressed that "he might be a sex addict." Downey

contends that Johnson subsequently admitted to her that he had

met a woman at a hotel for sex on May 31, 2016, consistent with

the credit card bill Downey had seen on his desk, and during the

timeframe that he would have been on duty.

6 At her deposition, Downey testified that it was "possible"
that the sexually explicit materials on the hard drive were in
one "folder" labeled "trash," and that the folder was organized
into multiple subfolders, some of which were organized by
women's names and some by body parts. The folder labeled "KD"
that she opened contained photographs of herself ("nothing
unclothed"), which she deleted. In total, Downey opened about a
dozen files.
5

Acting on the advice of the State police employee

assistance unit, Downey contacted Lieutenant Colonel Thomas

Grenham, the sexual harassment officer, to express her concern

about what she had found on Johnson's hard drive and iPad.

During their meeting, Grenham, who was also the commander of the

division of standards and training (division), advised Downey to

submit a written complaint, which she did on July 12, 2016,

detailing the course of events that led to the discovery of the

"pornographic images and videos" on the hard drive and Johnson's

iPad.7 Downey also alleged that Johnson admitted to having sex

with another woman during the May 31 hotel stay, and expressed

the possibility that Johnson may have been on duty at the time

of the tryst.

On July 19, 2016, Johnson was temporarily transferred out

of the academy, effective July 24, 2016, pending an

investigation; Downey remained at the academy. On July 21,

2016, Detective Lieutenant Mary McCauley was assigned to

investigate Downey's complaint.8 McCauley's investigation

included a review of the files that Downey had copied from the

7 On July 7, 2016, the same day that Downey met with
Grenham, then-Captain Kerry Gilpin, the executive officer of the
division, was dispatched to the academy to "secure items from
. . . Johnson's [academy] office." Gilpin removed computers and
equipment from Johnson's office.

8 Downey retained her present counsel at this time and was
represented going forward.
6

hard drive, a search of Johnson's office, and an analysis of

Johnson's State police desktop computer, user logon

identification, e-mail, and web activity information. McCauley

did not examine the hard drive itself, because Johnson "refused

to produce [it] for examination." McCauley interviewed only

Johnson and Downey because "[a]lthough it would have been

relevant to assess whether other [defensive tactics] staff

besides [Downey] had also used the [hard drive], a decision was

made to limit witness interviews to [Downey and Johnson]."

During the investigation, Johnson "confirmed Trooper

Downey's version of events that she had immediately confronted

[Johnson] . . .; that he cheated on her; that she was accurate

in her assumption that he stayed in a hotel with someone else;

and that she had, as reported, found pictures of him with other

women stored on [the hard drive] located in his [academy]

office." Johnson also admitted to McCauley that he had told

Downey he "must be a sex addict" to get Downey to "back the

pressure off of demanding answers from me." In addition,

Johnson admitted that he had stayed in a hotel with someone on

the afternoon of May 31, 2016; that he had his marked cruiser

with him; and that he thought it was after his 7 A.M. to 3 P.M.

shift, but it was possible that he had checked in earlier than 3

P.M.
7

McCauley's January 13, 2017, report stated: "This officer

developed no evidence to confirm whether or not Trooper Johnson

would have still been on shift when he went to the hotel, so

that particular allegation could not be investigated further."

There is no indication that McCauley checked the hotel's records

or the credit card statement, or asked other personnel about

Johnson's whereabouts that day. McCauley's report also made "no

conclusions about Trooper Johnson's use of web-based email

services, or his affiliation with adult dating services."

McCauley recommended that Downey's complaint be sustained,

concluding that Johnson had violated State police policy by

(1) failing to log off the network when leaving his State police

computer unattended for extended periods, (2) allowing other

employees to have access to his State police computer through

his account, (3) connecting a personal hard drive to the State

police computer and network while knowing that the hard drive

contained "materials inappropriate for the workplace," and

(4) storing shirtless "selfies" of himself on the State police

desktop computer.9 After reviewing McCauley's report, Captain

David DeBuccia, the internal affairs section commander, also

9 Several photographs had been deleted from Johnson's
desktop computer at 8:30 P.M. on July 6, 2016, hours before
Downey met with Grenham (timing McCauley called "suspect"), and
were recovered from the recycle bin of Johnson's State police
computer during the forensic examination.
8

recommended to Grenham and Major David Otte, the deputy

commander of the division, that the charge therein be sustained.

Otte concurred in that conclusion as well as the disciplinary

recommendations. On April 18, 2017, Johnson was informed that

he was being permanently transferred out of the academy where he

had been assigned for approximately ten years. Johnson was very

unhappy about the transfer.

2. The taser incident. On the same day that Johnson

received notice of his permanent transfer from the academy, he

circulated a draft complaint against Downey to three current

State police employees and one retired member, in violation of

State police policy.10

Three days later, on April 21, 2017, Johnson filed a

written complaint about Downey with Grenham. Johnson's

complaint alleged that thirteen months earlier, in March of

2016, Downey aimed her taser at him while they and two other

defensive tactics instructors, State police Troopers Steven

Wohlgemuth and David Lahair, were cleaning up the gym after a

taser training session. Unbeknownst to Johnson, however, Downey

had loaded her taser with an "inert" or "training" cartridge

10Pursuant to an April 23, 2009, State police general
order, troopers must "[i]mmediately" report all potential
incidents of workplace violence "to their immediate supervisor."
None of the recipients of the draft complaint was Johnson's
supervisor.
9

that had been altered to look like a "live" cartridge and so

that the barbs would bounce off the targeted individual.11

Downey deployed the taser, hitting Johnson in the hip and

abdomen before the blunt metal pieces bounced to the ground.

Johnson was not wearing protective equipment at the time.12

Johnson contended that he had not reported the taser incident

earlier because, among other reasons, he did not want to

jeopardize the then-new taser program, and he could monitor

Downey's behavior as an instructor going forward to "preempt any

future lapses in her judgment." He also alleged that after he

left the academy, other members of the defensive tactics staff

had relayed that Downey had been exhibiting "erratic behavior,

such as mood swings, emotional outbursts, and verbal arguments

with fellow instructors." Johnson reported that he had

witnessed this type of "volatile" behavior previously "on

11 The inert cartridge used by Downey had a black cover to
look like a live cartridge, and the probes had been cut off,
guaranteeing it could not stick to the target.
12 Although Johnson contended that he suffered a couple of

small bruises, roughly the size of a "dime" or a "quarter,"
Downey has consistently disputed that contention, noting Johnson
had never mentioned an injury and she had observed none. In
addition, Wohlgemuth testified that Johnson never complained
thereafter that the incident "was harmful in any way."
Wohlgemuth added that he had been hit with thousands of inert
cartridges, including in the neck and hands, but had never
sustained a bruise. Lahair also testified that he had never
sustained an injury from being tased. The State police's
investigation concluded that there was "no evidence of injury
documented," but that Downey's conduct nonetheless had "the
potential to cause serious injury."
10

occasion" as well as a "negative attitude" by Downey toward her

students that had led to complaints. Johnson indicated that if

"Downey were to have another incident like the one perpetrated

on [him,] [he] would feel at least partially responsible for any

injuries or damages that might result." As a result of

Johnson's complaint, Downey, Wohlgemuth, and Lahair were

restricted from teaching certain defensive tactics at the

academy.

On April 23, 2017, Johnson shared his complaint, using

State police letterhead, with Axon Enterprises, Inc. (Axon),13

"requesting that Trooper Downey's instructor certification be

revoked."

Five days after Johnson filed a written complaint with

Grenham, Detective Lieutenant Carla Pivero was assigned to

investigate Johnson's complaint.14 Pivero interviewed Downey,

Johnson, Wohlgemuth (twice), and Lahair (twice), and, among

other things, reviewed training schedules, e-mails, and the

13Axon was "formerly known as TASER International, Inc."
Ramirez v. Commonwealth, 479 Mass. 331, 339 n.4 (2018).

14Pivero was subsequently tasked with investigating
complaints that (1) Johnson had filed the taser complaint in
retaliation for Downey's earlier complaint; (2) Johnson had
failed to timely report an incident of workplace violence; and
(3) Johnson had shared improperly his complaint outside the
State police.
11

taser activity records for Downey and Johnson.15 Downey admitted

to firing the taser, but explained that she had intended only to

"prank" Johnson; that the prank was Wohlgemuth's idea and that

he had showed her earlier on the day of the incident how he had

altered inert cartridges to look like live ones; and that

Wohlgemuth provided the altered cartridge used in the prank.

Downey also said that she and Wohlgemuth discussed the prank

with Lahair in advance. For his part, Wohlgemuth admitted that

he had altered taser cartridges for training purposes and that

one of these cartridges was used by Downey; however, he denied

providing the altered cartridge to Downey.16 Both he and Lahair

denied having prior knowledge of or involvement in the plan.

Downey, Wohlgemuth, and Lahair reported to Pivero that all four

troopers laughed at the time. Indeed, Lahair reported that

immediately after being struck, Johnson had exclaimed, "[W]hoa,

nothing happened, I feel like Superman." Wohlgemuth also heard

the Superman reference. The incident was discussed afterwards

15After interviewing Johnson, Pivero obtained and reviewed
student survey results for the entire eighty-second training
troop, confirming Johnson's representation that "on the rare
occasion" the instructors received a negative comment from
students, he would "often see" that Downey was the subject of
the complaint.

16Under the State police rules and regulations, troopers
are not permitted to modify any use of force equipment or parts
without the authorization of the armorer.
12

among the instructors in a humorous context. During his

interview with Pivero, Johnson claimed for the first time that

the incident was dangerous and egregious and caused a

"psychological impact," and he alleged other behavioral issues

by Downey.17 Downey, through her attorney, and Wohlgemuth both

expressed that they believed Johnson's complaint was in

retaliation for Downey's prior complaint against Johnson.

Wohlgemuth also testified that Johnson's contacting of Axon (the

taser company) was "payback."

In a written report dated September 12, 2017, Pivero

recommended that the charge against Downey be sustained,

concluding that Downey engaged in misconduct by improperly

deploying her taser. Pivero found that, although Wohlgemuth

admitted to altering taser cartridges and that Downey used one

of the cartridges he altered, he and Lahair were not involved in

the taser incident other than as witnesses; Downey's

"uncorroborated and disputed testimony" led Pivero to "discount

Trooper Downey's credibility in her statement" as compared to

17Johnson alleged that Downey did not get along with the
other instructors, interjected her opinions that were
inconsistent with the overall training program, did not seem to
take the training as seriously as some of the other instructors,
exhibited an "abnormal sense of humor," was a "source of
dissention and disagreement in the unit," and refused "to accept
the way things were done and want[ed] to do things her way."
Johnson further alleged that several instructors relayed to him
other incidents of Downey "acting unprofessionally."
13

Wohlgemuth's and Lahair's denials. Pivero recommended that the

retaliation complaint against Johnson not be sustained,

concluding that there was "insufficient evidence to prove or

disprove" the charge. Although she found Johnson's timing to be

"suspect," she concluded that "retaliation [wa]s difficult to

prove," where, among other things, Johnson provided explanations

for his delay. Pivero also found that there was sufficient

evidence to sustain the charge that Johnson improperly shared

his complaint outside the State police, and accordingly,

recommended that the charge of employee misconduct be

sustained.18

DeBuccia reviewed Pivero's investigative summary and made

the same recommendations to Grenham and Otte. After reviewing

Pivero's report himself, Otte also concluded that the charge

against Downey should be sustained and recommended that Downey

be removed from the academy and prevented from instructing on

use of force equipment. Otte also agreed with Pivero's

assessment that Wohlgemuth and Lahair were not involved in

planning the taser incident; he concluded, however, that the two

had failed to appreciate their duties and responsibilities and,

as such, he recommended that Wohlgemuth and Lahair receive

18For reasons left unexplained, Pivero did not make any
findings with respect to the complaint charging Johnson with
failure to timely report workplace violence.
14

letters of counselling.19 Finally, although Otte found the

timing of Johnson's complaint to be "highly suspect," he

concurred with Pivero that the retaliation charge should not be

sustained.20,21

On October 17, 2017, Downey was permanently transferred out

of the academy and assigned to patrol, effective October 22,

2017.22 Downey appealed her discipline to the State police trial

19The letters of counselling are not in the record. Downey
disputes that they were given. In any event, the letters were
"nondisciplinary."

20Otte acknowledged the likelihood that Johnson's complaint
was motivated, at least in part, by a desire to retaliate
against Downey, and explained that nonetheless, the State police
"had a clear obligation to investigate" Johnson's complaint "and
take immediate corrective action." Due to certain "mitigating
circumstances," however, including "the timing of [Johnson's]
complaint," and the large number of State police members that
have been tased as part of training, Otte recommended that
Downey be disciplined "at or below the lower end of the
disciplinary guidelines."

21Otte also recommended that the charges against Johnson
for failing to timely report workplace violence and the improper
dissemination of information be sustained, though he recommended
"mitigat[ing] any discipline" for "late reporting" of workplace
violence to avoid potentially "chilling" other would-be
complainants from coming forward. Otte recommended that Johnson
receive a letter of reprimand, or "perhaps even a loss of
accrued time" for the two sustained complaints. Downey disputes
whether Johnson was disciplined for disclosing his complaint
outside of the department to Axon. The record does not contain
a written reprimand of Johnson for this disclosure.

22After Downey's transfer, she was promoted to sergeant in
2018, to lieutenant in 2019, and to lieutenant detective in
2020. None of these promotions was discretionary; they were
either based on promotional examinations or consolidation of
units.
15

board (trial board).23 The trial board found Downey "guilty" of

one violation of State police rules (unsatisfactory performance)

by deploying the taser and recommended that Downey be issued a

written reprimand and be restricted from instructing defensive

tactics "for a period of time determined by the Colonel."

Colonel Kerry Gilpin, who had become the State police

Superintendent, adopted the trial board's finding and

recommendations, with two exceptions. First, Gilpin disagreed

with the trial board's characterization of the incident as a

"prank and not an egregious safety issue." Second, she rejected

the trial board's recommendation that Downey be barred from

defensive tactics instruction. Downey eventually received a

letter of reprimand.

3. The Grenham rumor. On September 25, 2017,24 Downey

submitted a letter to the highest-ranking officers in her chain

of command at the time, Colonel Richard McKeon and Lieutenant

23Under the State police rules and regulations, a trial
board "shall enter a determination of 'Guilty' or 'Not Guilty'
for each charge/specification." Massachusetts State Police
Rules and Regulations § 6.7.8 (2001). See Burns v.
Commonwealth, 430 Mass. 444, 448 n.6 (1999) ("The board appears
analogous to a military court martial board").

24The statement of undisputed facts dates the letter
September 17, 2017, but this appears to be a typographical error
as the cited support is the September 25, 2017, letter. Nothing
turns on this discrepancy.
16

Colonel Francis Hughes, alleging that Johnson and others had

retaliated against her for reporting Johnson to superiors (rumor

complaint). Downey complained that days after Pivero issued her

September 12 report, rumors began to circulate that Downey was

involved in a sexual relationship with Grenham. At the time,

Grenham was one of the senior officers in the division who would

review Pivero's report and make recommendations about discipline

for Downey. Downey requested that the State police investigate

the source of the rumors and expressed her suspicion that it was

Johnson. Downey also claimed that the Boston Globe newspaper

had been "informed" of the rumor. Grenham also learned of the

rumors. In fact, during the investigation of his complaint,

Johnson had expressed his concern to Pivero that Downey would

not be "disciplined commensurate with [her] actions" by "senior

command staff." The timing of the rumor coincided with when

Grenham would be reviewing Pivero's report and making

recommendations, and it could have affected that process.25 The

next day, on September 26, 2017, before any investigation had

occurred, Downey received a negative supervisory report for

filing the rumor complaint "out of [her] chain of command."26

25For example, it could have goaded Grenham into recusing
himself or being harder on Downey than he might otherwise have
been.

26The State police policies and procedures permit reports
of retaliation to be made to any "supervisor." McKeon and
17

On October 5, 2017, Downey and her attorney met with

Captains Brian Moran and Lee Gullage to discuss these concerns.

This meeting was not recorded unlike previous meetings with

investigating officers. Thereafter, Moran testified that he and

Otte conducted a data-mining search of all work e-mails to see

if the source of the rumor could be located, but no evidence

related to the alleged rumor or its source was found. No

official investigation was ever opened, and no interviews were

conducted. Other than the e-mail search, the State police did

not conduct any additional investigation. Moran's alleged

report of the investigation submitted to Otte has never been

produced, and the results of any investigation were never

communicated to Downey.

Discussion. Downey appeals from the judgment in favor of

the defendants on her claims of hostile work environment,

disparate treatment, and retaliation.

1. Standard of review. "Summary judgment is granted where

there are no issues of genuine material fact, and the moving

party is entitled to judgment as a matter of law." Ng Bros.

Constr. v. Cranney, 436 Mass. 638, 643-644 (2002). In reviewing

the grant of summary judgment, we "review the evidence in the

Hughes were Downey's supervisors. When Downey obtained a copy
of her full personnel file, the negative report was not
contained therein, and the State police have never produced it.
18

light most favorable to the party against whom summary judgment

entered," here Downey (citation omitted). Adams v. Schneider

Elec. USA, 492 Mass. 271, 280 (2023). We draw all reasonable

inferences in her favor. See id. at 288; Sullivan v. Liberty

Mut. Ins. Co., 444 Mass. 34, 38 (2005). "Our review on summary

judgment is de novo." Yee v. Massachusetts State Police, 481

Mass. 290, 294 (2019).

2. Claims. a. Hostile work environment sexual

harassment. To prevail on this claim under G. L. c. 151B,

§ 4 (16A), Downey has the burden of establishing, among other

things, that "the conduct alleged was both 'subjectively

offensive' and 'sufficiently severe and pervasive to interfere

with a reasonable person's work performance'" (citation

omitted). Gyulakian v. Lexus of Watertown, Inc., 475 Mass. 290,

296 (2016). See Muzzy v. Cahillane Motors, Inc., 434 Mass. 409,

411-412 (2001). A hostile work environment is one "pervaded by

harassment or abuse, with the resulting intimidation,

humiliation, and stigmatization, pos[ing] a formidable barrier

to the full participation of an individual in the workplace."

College-Town, Div. of Interco, Inc. v. Massachusetts Comm'n

Against Discrimination, 400 Mass. 156, 162 (1987) (College-

Town).27 Downey's claim founders on these requirements.

27The standards applicable to Title VII hostile work
environment claims are analogous to G. L. c. 151B standards.
19

First, no jury reasonably could find on this record that

Downey's discovery of sexually explicit images on the hard drive

on one occasion created a hostile work environment within the

meaning of the statute.28 Johnson did not leave his pornography

displayed openly such that Downey was required to view it, and,

as Downey concedes, Johnson never intended for Downey to view

the images. Rather, in the course of accessing the training

materials on the hard drive, Downey opened files that one could

tell (from their titles) had nothing to do with defensive

tactics training.

See Brisette v. Franklin County Sheriff's Office, 235
F. Supp. 2d 63, 84-85 (D. Mass. 2003) (approach taken by Supreme
Judicial Court does not differ greatly from United States
Supreme Court's analysis). See also Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21-23 (1993); Forsythe v. Wayfair Inc., 27
F.4th 67, 72 (1st Cir. 2022) (court noted that plaintiff did not
dispute that if her Title VII failed as matter of law, so did
her c. 151B claim). Where Downey analyzes the claims together
and does not point out any material differences in the
standards, our conclusion that her c. 151B claims related to a
hostile work environment on this theory failed as a matter of
law therefore extends to her Title VII claims.

28Downey alleges two other acts of harassment by Johnson
that contributed to a hostile work environment. Even if
Johnson's tryst in the hotel in May 2016 with another woman
occurred during work hours, Downey was not exposed to this
behavior in her workplace. Johnson made his admissions about
using the "Adult Friend Finder" website and his possible sex
addiction during an offsite lunch he had agreed to attend when
Downey wanted to talk about their personal relationship. Given
the positive workplace relationship between Downey and Johnson
until she discovered his perfidy and then pornography, Johnson's
acts and his admissions were too attenuated from the workplace
to support an actionable hostile work environment claim.
20

To be sure, Downey's discovery of the pornography on the

hard drive and the fact that Johnson had cheated on her made her

uncomfortable in the workplace. Downey immediately broke up

with Johnson and did not want to be around him. After Downey's

discovery, her contact with Johnson was "minimal."29 Johnson's

conduct was not sufficiently severe and pervasive to interfere

with a reasonable person's work performance.

Second, Downey contends that the State police's liability

for Johnson's conduct depends on the "factual" question whether

Johnson was Downey's supervisor or merely a coworker, and that

it was error for the judge to resolve that question in favor of

Johnson's coworker status on summary judgment. We disagree. To

be sure, the question whether Johnson was Downey's supervisor

can properly be considered "factual." But that factual question

was not disputed. Johnson testified before the trial board that

he was not Downey's supervisor. Downey did not point to any

evidence of record indicating otherwise, nor did she even allege

or argue before this appeal that Johnson was her supervisor. In

short, Downey failed to "respond[] to the defendants' evidence

with any countervailing evidence that would indicate there is a

genuine issue of material fact" as to whether Johnson was her

29Johnson was on leave for National Guard training in early
July 2016 and on his return was transferred out of the academy.
21

supervisor. Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass.

456, 467 (1997).

Downey contends that even if Johnson was not her

supervisor, the State police can still be held liable for his

conduct. It is certainly true that "an employer who is notified

of sexual harassment in the workplace and fails to take adequate

remedial action violates G. L. c. 151B, § 4." College-Town, 400

Mass. at 167. See Noviello v. Boston, 398 F.3d 76, 95 (1st Cir.

2005) (employer can be held liable under Title VII for coworker-

perpetrated harassment on "showing that the employer knew or

should have known about the harassment, yet failed to take

prompt action to stop it"). It is undisputed, however, that the

State police promptly responded to Downey's complaint by

(1) temporarily transferring Johnson out of the academy;

(2) notifying Downey of her rights and the process for filing a

sexual harassment complaint and investigating her allegations;

and (3) as a result of that investigation, permanently

transferring Johnson out of the academy. Importantly, Downey

does not suggest that Johnson's transfer failed to remediate the

concerns that she had raised to the State police, nor is there

any evidence in the record from which one can infer that the

State police's actions, in their totality, were anything other

than "adequate steps to remedy the situation." College-Town,

supra at 163. For example, Downey does not contend that the
22

behaviors about which she had complained continued after

Johnson's transfer, nor is there any other evidence in the

record indicating that, if Johnson's conduct constituted

harassment in the first instance, the State police's response

was not "reasonably calculated to end and deter any further

harassment." Modern Cont./Obayashi v. Massachusetts Comm'n

Against Discrimination, 445 Mass. 96, 110 (2005). See id. at

113 (removing potential harassers from complainant's "immediate

work area" sufficient response, especially where "there was no

form of sexual harassment perpetrated thereafter").

Downey argues that she should prevail all the same because

the motion judge erred in concluding that the investigation was

"prompt, fair, and thorough." And, as she contended to the

motion judge, McCauley relegated Downey's complaint about

Johnson's misconduct to a "failed personal relationship with a

coworker" and found that Downey accessed a device (the hard

drive) that "clearly did not belong to her." Although it is

true that "the failure to remedy alleged discrimination . . .

can arise where the employer purports to investigate the

discrimination, but does so in an inadequate manner," Gyulakian,

475 Mass. at 301-302, we are aware of no case (and Downey points

to none) holding that an employer can be liable for an

inadequate investigation that nonetheless results in adequate

remedial action against the alleged harasser. Liability under
23

G. L. c. 151B does not lie for flawed business judgment,

investigative shortcomings, and personnel mistakes. See

Sullivan, 444 Mass. at 56. Rather, liability arises for

discriminatory animus in the employment decision. See Matthews

v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 128, 134

(1997).30 Even accepting Downey's contentions that the

investigator asked her "humiliat[ing]" questions, made

"improper" comments, and was not as thorough as she ought to

have been, for Downey's claim of a hostile work environment, the

upshot is that the State police promptly took actions designed

to remediate the concerns that Downey had raised.31 Contrast

Gyulakian, supra at 293, 301-303 (alleged harasser not

disciplined after notice to management and inadequate

30As for Title VII, Downey's claim fails because she cannot
establish that the State police "knew or should have known about
the harassment, yet failed to take prompt action to stop it"
(quotation and citation omitted). Forsythe v. Wayfair Inc., 27
F.4th at 73. Title VII "does not ensure against inaccuracy by
an employer, only against . . . discrimination." Rivas Rosado
v. Radio Shack, Inc., 312 F.3d 532, 535 (1st Cir. 2002).

31Downey argues that the investigation here was lacking
because the investigator (1) "humiliated" Downey by making her
"describe the images on the hard drive" (and Downey notes that
the investigator did not ask Johnson to do so); (2) made
"improper" comments about Downey accessing a device that did not
belong to her and Downey's "failed personal relationship with a
co-worker"; and (3) did not review the hard drive or investigate
whether Johnson had checked into the hotel while on duty.
Though these arguments cannot defeat summary judgment on the
hostile work environment claim, they may be relevant to her
claim of disparate treatment. See infra.
24

investigation); College-Town, 400 Mass. at 167-168 (same). As

noted supra, there is no evidence in the record that those

actions were ultimately ineffective. Under those circumstances,

summary judgment in favor of the State police on Downey's claim

of a hostile work environment was proper.

b. Disparate treatment discrimination based on gender.

Downey contends that she was treated less favorably than her

male counterparts in connection with the State police

investigations of employee misconduct and the imposition of

discipline. Lacking direct evidence of discriminatory animus

and causation, Downey, as was her right, elected to use the

modified McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805

(1973), paradigm to defeat summary judgment. See Verdrager v.

Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass.

382, 396-397 (2016); Bulwer v. Mount Auburn Hosp., 473 Mass.

672, 680-683 (2016).

Under the burden-shifting paradigm, Downey had the initial

burden of establishing a prima facie case of discrimination.

The elements of a prima facie case are intended to be flexible

and vary depending on the specific facts of the case. See

Sullivan, 444 Mass. at 42. The burden is "not intended to be

onerous." Id. at 45. To meet her prima facie burden on the

theory of her case here, Downey was required to show that she

was a member of a protected class, she suffered an adverse
25

employment action, and "she was treated differently from another

person, known as a comparator, who was not a member of her

protected class, but who otherwise was 'similarly situated'"

(citation omitted). Trustees of Health & Hosps. of Boston, Inc.

v. Massachusetts Comm'n Against Discrimination, 449 Mass. 675,

682, 687 (2007) (Trustees) (disparate treatment of employees in

implementation of layoff procedure violated G. L. c. 151B, § 4

[1]).32,33 See Molloy v. Blanchard, 115 F.3d 86, 91-92 (1st Cir.

1997) (female police officer established prima facie case of

gender discrimination in Title VII case by establishing, among

other things, that similarly situated male officers received

more lenient treatment in discipline). Whether an individual is

a sufficiently similar comparator for purposes of this analysis

depends not on whether their circumstances are identical, but on

Downey argues that the judge's iteration of the prima
32

facie elements was incorrect because he considered comparator
evidence at stage one instead of stage three of the paradigm.
That argument is at odds with the Trustees case, where the
Supreme Judicial Court considered comparator evidence in the
first stage. See Trustees, 449 Mass. at 682. We recognize that
in Matthews, the Supreme Judicial Court considered comparator
evidence at the third stage, perhaps because the defendant did
not challenge whether the plaintiff met his prima facie case.
See Matthews, 426 Mass. at 129. This difference is not material
to our analysis.

Plaintiffs can prove their prima facie case without
33

comparator evidence if they have other proof of discrimination.
See Trustees, 449 Mass. at 682-683 (plaintiffs proceeded on
alternative theories, one requiring comparator evidence and one
not).
26

whether they are similar "in all relevant aspects" (citation

omitted). Trustees, supra at 682. "The test is whether a

prudent person, looking objectively at the incidents, would

think them roughly equivalent and the protagonists similarly

situated. . . . Exact correlation is neither likely nor

necessary, but the cases must be fair congeners. In other

words, apples should be compared to apples" (citation omitted).

Id.

Here, the State police does not contest Downey's

satisfaction of the first two elements. As for the third

element, Downey offers two possible comparators: Johnson and

Wohlgemuth.34 The motion judge rejected that each was

sufficiently similar to Downey for purposes of this analysis.

We disagree.

i. Johnson as comparator. First, Downey offered evidence

from which a reasonable jury could conclude that she and Johnson

were "similarly situated" but were nonetheless "treated

differently" (citation omitted). Trustees, 449 Mass. at 682.

Specifically, Downey produced evidence that she and Johnson were

accused of serious violations of State police policy -- Downey

for firing her taser containing a modified cartridge at an

unprotected Johnson, and Johnson for storing illicit materials

At oral argument, Downey's counsel clarified that Downey
34

was not asserting Lahair as a comparator.
27

on the hard drive that he connected to the State police network,

leaving the entire State police computer network unsecured, and

potentially not working his full shift or engaging in sexual

activity while on duty. Both troopers held the same rank and

assignment to the academy. They were members of the same class

at the academy and had clean disciplinary records at the time of

their respective complaints against each other. While their

offenses are by no means "identical," a reasonable jury could

conclude that they were "of comparable seriousness." Matthews,

426 Mass. at 130.

Downey also put forth evidence from which a jury could

infer that, despite their similarities, Johnson and Downey were

treated differently. First, there is a dispute of fact over

whether Johnson received a letter of reprimand for his report to

Axon and others in violation of State police policy. See note

21, supra.

Second, assuming the ultimate punishments imposed were the

same (a transfer from the academy and a letter of reprimand), a

reasonable jury could conclude that the State police did not

conduct an investigation of all of Johnson's alleged misconduct,

but did of Downey's. For example, even though Johnson admitted

to investigators that it was possible that his tryst at the

hotel occurred while he was on duty, and had candidly admitted

privately to Downey that it was, there is no evidence in the
28

record that the State police checked the hotel or Johnson's

credit card records, or interviewed his coworkers as to his

whereabouts that day. Similarly, the State police did not

review the hard drive, although there were questions about the

folder name or names where the pornography was stored. The

State police confined the interviews to Johnson and Downey, even

though coworkers in the academy who had access to the hard drive

might have provided valuable information on the scope of

Johnson's misconduct. In contrast, there is evidence that the

State police inquired of every third party implicated in

Johnson's taser complaint and checked records for both Downey

and Johnson's taser activities.

Moreover, Johnson admitted that after he was involuntarily

transferred from the academy, he spoke to other academy

instructors about Downey. That alone should have been a moment

of concern for the State police about whether Johnson was

attempting to harass Downey. Johnson then made comments about

Downey to the State police that potentially epitomized sexual

stereotyping (relaying that after Johnson left the academy,

Downey had been exhibiting "erratic behavior, such as mood

swings, emotional outbursts, and verbal arguments with fellow

instructors"). Instead of determining whether Johnson was

potentially subjecting Downey to classic sexism or even speaking

to the other instructors, the State police obtained survey
29

results for an entire training class to confirm Johnson's

comment that "on the rare occasion" the defensive tactics unit

received a negative survey comment from students, he "would

often see that comment generated regarding Trooper Downey's

instruction." And, in finding that there was "insufficient"

evidence of retaliation to sustain the retaliation charge

against Johnson, all State police officers involved in the

investigation concluded that "retaliation is hard to prove"

rather than evaluate the evidence. They did so notwithstanding

the timing of the complaint, the sexist attitudes Johnson

displayed in his justifications for not making a timely report,

and the evidence from "credible" witness Wohlgemuth that Johnson

submitted the taser complaint and contacted Axon to retaliate

against Downey. See Verdrager, 474 Mass. at 399-400 (conduct by

supervisors reflective of "[s]tereotypical thinking," in

conjunction with other evidence of disparate treatment, could

support allegations of discrimination [citation omitted]).

For reporting the retaliation and rumor to the highest-

ranking State police officers at the time, as permitted by State

police rules, the State police immediately gave Downey a

negative supervisory report. A fact finder could conclude that

Johnson, in contrast, received no discipline at all for the

sustained charge of improperly sharing State police documents
30

with an outside party, even though he had a "conviction" on his

record by that point.35

A jury also could find that the State police did not

conduct an investigation into Downey's rumor complaint and that

the State police's explanation for not opening an investigation

of Johnson in connection with the rumor complaint was not true.36

There was evidence that the State police did not follow its

written rules and regulations pertaining to investigations and

discipline. For example, under State police policy, all

complaints must be investigated. Based on the facts of record,

including the lack of any recording as occurred in all other

investigations and the failure to produce the final report from

the investigating officers (as well as the negative supervisory

report issued to Downey), a jury could find that no meaningful

35The State police prosecutor consolidated the two
sustained charges of improper dissemination of the draft
complaint and failure to report the workplace violation into a
single charge of unsatisfactory performance. Otte recommended
that any discipline for Johnson's thirteen-month delay in
reporting the violence should be "mitigated" because Johnson was
a "victim," and Otte was concerned about the chilling effect on
other employees who have knowledge of workplace violence but are
afraid to report it.

36Moran testified that he and Otte had "grave difficulties"
in arriving at "some reasonable premise" to investigate Johnson
as the source of the rumor. A jury could find that this was not
credible. Aside from the rumor potentially being retaliatory
because Johnson believed Downey would be treated favorably by
supervisors, Grenham was due to review the Pivero report and the
rumor could have succeeded in causing Grenham to recuse himself
from that review.
31

investigation into Downey's rumor complaint to McKeon and Hughes

ever occurred. The "'failure to follow established procedures

or criteria' . . . [may] support a reasonable inference of

intentional discrimination." Bulwer, 473 Mass. at 687, quoting

Nesbitt v. Holder, 966 F. Supp. 2d 52, 56 (D.D.C. 2013).

The above evidence was sufficient to create a genuine issue

of material fact whether Johnson and Downey were similarly

situated but nonetheless treated differently. See Butler v.

Prairie Village, 172 F.3d 736, 750 (10th Cir. 1999) ("evidence

that other employee harassment complaints were handled in a more

thorough and systematic fashion" was evidence of disparate

treatment that helped "satisf[y] . . . [p]laintiff's prima facie

case"). Downey therefore met her burden as to her use of

Johnson as a comparator. See Trustees, 449 Mass. at 685-687 (by

adopting procedure for all employees being laid off, plaintiffs

were similarly situated in all relevant aspects to comparators

outside protected classes who were fully or partially exempted

from harsh layoff procedure).

ii. Wohlgemuth as comparator. Downey also raised a

genuine issue of material fact concerning whether she and

Wohlgemuth were "similarly situated" for purposes of meeting her

prima facie burden. It is undisputed that Wohlgemuth admitted

to tampering with some use-of-force equipment -- taser

cartridges. This was a potential violation of State police
32

rules and regulations, yet Wohlgemuth was not investigated or

charged with misconduct. The record also reveals a dispute of

fact about whether Wohlgemuth was disciplined for not reporting

the taser incident. Downey also offered sufficient evidence

from which a jury could conclude that the State police's

determination that she was not truthful about Wohlgemuth being

the architect of the taser incident was not reasonable and

itself was an unreasonable determination rooted in sexism.37

This conflicting evidence goes directly to the heart of whether

Wohlgemuth's conduct, as the alleged architect behind the taser

incident, was "roughly equivalent" to Downey's as the ultimate

perpetrator (citation omitted). Trustees, 449 Mass. at 682.

iii. Stages two and three. Downey does not challenge the

State police's satisfaction of its non-onerous, second-stage

burden. See Yee, 481 Mass. at 302 (to meet second-stage burden,

employer must simply articulate a "lawful reason backed by some

credible evidence"); Joseph v. Lincare, Inc., 989 F.3d 147, 158

37The State police report of its investigation
"discount[ed]" Downey's testimony as "uncorroborated and
disputed" and credited the testimony of the men. While the
State police had no obligation to credit Downey, a jury can
consider the reason Downey's testimony was not credited. Given
that one person's testimony, if believed, suffices to support a
criminal conviction beyond a reasonable doubt, Commonwealth v.
Santos, 100 Mass. App. Ct. 1, 6 (2021), a jury could find that
for a law enforcement agency's decision to discount a woman's
testimony as "uncorroborated and disputed" by male employees is
disparate treatment.
33

(1st Cir. 2021) (in Title VII case employer's burden at stage

two is one of production, not persuasion, and can be met by

articulating nondiscriminatory reason for adverse employment

action). See also Bulwer, 473 Mass. at 683 n.12.

Turning to the third stage of the paradigm, we conclude

that Downey's evidence, "taken as a whole rather than viewed in

isolation" (citation omitted), Bulwer, 473 Mass. at 684, was

sufficient to create a material dispute that the reasons given

for the different treatment of Downey were pretextual. In

addition to helping her satisfy her prima facie case, Downey's

evidence that similarly situated male employees were treated

more favorably is "[t]he most probative means of establishing

. . . pretext." Matthews, 426 Mass. at 129. Genuine issues of

fact exist regarding the State police's good faith belief for

disciplining Downey and not disciplining the male comparators,

precluding summary judgment.38 See Bulwer, 473 Mass. at 683. A

reasonable jury could interpret the comments and actions of the

State police here "as reflecting stereotypical thinking" that

38"Massachusetts is a pretext only jurisdiction," meaning
that a "plaintiff need only present evidence from which a
reasonable jury could infer" that the reasons given for an
employer's actions were not the real ones (citation omitted).
Bulwer, 473 Mass. at 681. Claims under Title VII require "a
plaintiff to demonstrate that the employer's stated reasons are
[in fact] a pretext for concealing a discriminatory purpose."
Adams v. Schneider Electric USA, 101 Mass. App. Ct. 516, 525
n.20 (2022), S.C., 492 Mass. 271 (2023).
34

resulted in disparate treatment (quotation and citation

omitted). Id. at 684. Similarly, for Title VII purposes,

Downey has submitted sufficient evidence that the State police's

stated reasons are a pretext for concealing a discriminatory

purpose. The disparate treatment claims should have been

submitted to a jury.

c. Retaliation. To establish retaliation, Downey must

show that the "protected activity was a but-for cause of the

alleged adverse [employment] action" -- the discipline for the

taser incident (citation omitted). Theidon v. Harvard Univ.,

948 F.3d 477, 506 (1st Cir. 2020) (elements of retaliation claim

under Title VII). See Psy-Ed Corp. v. Klein, 459 Mass. 697, 707

(2011) (elements of retaliation claim under G. L. c. 151B). She

must also show that "the employer's desire to retaliate against

the employee must be shown to be a determinative factor in its

decision to take adverse action." Id. at 704. Downey cannot

make this showing.

Even if Johnson had a retaliatory motive for reporting the

taser incident, the State police independently investigated, and

Downey admitted that she fired an inert taser cartridge at

Johnson and that she did not act in accordance with her taser

training when she did so. Regardless of Johnson's motives, the

State police had an interest as an employer in disciplining

Downey's as an employee for her conduct, because it could have
35

resulted in injury whether it was a prank or workplace violence.

Nothing in this record indicates the employer was manipulated by

Johnson. See Adams, 492 Mass. at 273 (acknowledging "cat's paw

or innocent pawn theory of liability" under Massachusetts law).

That leaves the question whether Johnson could be liable

for retaliation even where the employer was not. To be sure,

G. L. c. 151B, § 4 (1),

"applies by its terms only to an 'employer.' . . .
Nonetheless, individuals, whether supervisors, fellow
employees, or third parties, also may be held liable by
provisions that forbid 'any person . . . to . . . interfere
with another person in the exercise or enjoyment of any
right granted or protected by this chapter,' G. L. c. 151B,
§ 4 (4A), and that prohibit 'any person, whether an
employer or an employee or not, to aid [or] abet . . . the
doing of any of the acts forbidden under this chapter.'
G. L. c. 151B, § 4 (5)." (Citation omitted).

Verdrager, 474 Mass. at 396. See Lopez v. Commonwealth, 463

Mass. 696, 713 (2012) (aiding and abetting under § 4 [5] is

derivative claim dependent on underlying act of principal

offender). Because Downey's briefing on this question does not

rise to the level of appellate argument and the issue is waived.

See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 482

Mass. 1628 (2019).

Conclusion. We vacate that portion of the summary judgment

related to Downey's claims under G. L. c. 151B and Title VII

premised on a theory that the State police engaged in disparate

treatment by treating Downey less favorably than Johnson,
36

Wohlgemuth, or both. In all other respects, the summary

judgment is affirmed.

So ordered.