Newton v. Commonwealth Employment Relations Board

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23-P-455 Appeals Court

CITY OF NEWTON vs. COMMONWEALTH EMPLOYMENT RELATIONS BOARD.1

No. 23-P-455.

Suffolk. January 12, 2024. – May 22, 2024.

Present: Vuono, Wolohojian, & Ditkoff, JJ.

Commonwealth Employment Relations Board. Employment,
Retaliation. Labor, Police, Unfair labor practice.
Practice, Civil, Prima facie case, Presumptions and burden
of proof. Municipal Corporations, Police, Unfair labor
practice. Public Employment, Police, Transfer. Police,
Assignment of duties.

Appeal from a decision of the Commonwealth Employment
Relations Board.

Jaclyn R. Zawada, Assistant City Solicitor, for the
plaintiff.
Lan T. Kantany for Commonwealth Employment Relations Board.
Alan H. Shapiro for the intervener.

WOLOHOJIAN, J. This appeal involves a claim of retaliation

for engaging in union activity, in violation of G. L. c. 150E,

1 Newton Police Superior Officers Association, MassCOP Local
401, intervener.
2

§ 10 (a) (3).2 More specifically, the Newton Police Superior

Officers Association, MassCOP Local 401 (union) claims that a

sergeant in the Newton police department (department), John

Babcock, was transferred from a day shift in the traffic bureau

to a night shift in the patrol division in retaliation for his

participation in protected union activities. After a three-day

evidentiary hearing, a hearing officer of the Department of

Labor Relations (DLR) found that the union failed to prove that

the city of Newton (city) would not have transferred Babcock but

for his protected activity. Instead, the hearing officer found

that the city's primary reason for transferring Babcock was his

unprofessional conduct in having a verbal altercation with a

subordinate, together with earlier issues concerning Babcock's

performance. The union appealed the hearing officer's decision

to the Commonwealth Employment Relations Board (CERB). CERB

reversed on the ground that the city failed to meet its burden

of producing evidence of a nonretaliatory reason for the

transfer. In other words, CERB concluded that the city failed

to meet its burden of production at the second stage of the

2 "It shall be a prohibited practice for a public employer
or its designated representative to . . . [d]iscriminate in
regard to hiring, tenure, or any term or condition of employment
to encourage or discourage membership in any employee
organization." G. L. c. 150E, § 10 (a) (3). The parties
proceed in this appeal on the assumption that § 10 (a) (3)
applies to this case, and therefore, we do not consider whether
that assumption is correct.
3

familiar burden-shifting framework used in cases where, such as

this one, there is no direct evidence of retaliatory motive.

See Trustees of Forbes Library v. Labor Relations Comm'n, 384

Mass. 559, 561 (1981) (Forbes). On that basis, CERB did not

reach the question whether the union met its burden of proving

that Babcock would not have been transferred but for

retaliation.

The city has appealed CERB's decision and raises three

issues. First, the city argues that at the first (prima facie)

stage of the burden-shifting analysis, the union was required to

establish, among other things, that Babcock had a generally good

work record, see Forbes, 384 Mass. at 565 n.4, and that the

union failed to meet that burden. Second, the city argues that

Babcock's transfer from a day shift to a night shift was not an

adverse employment action because it carried an increase in pay.

Third, the city argues that CERB erred in finding that the city

failed to prove that its lawful reason for the transfer was a

motive for Babcock's transfer.

We conclude that CERB correctly determined that the union

was not required to prove a generally good work record at the

prima facie stage of a retaliation claim under G. L. c. 150E.

The correct legal standard at the prima facie stage of a c. 150E

retaliation claim is that (1) the employee engaged in concerted

protected activity, (2) the employer knew of that activity, (3)
4

the employer took an adverse employment action, and (4) there

was a causal connection between the protected activity and the

adverse action. But we also conclude that CERB mistakenly

applied the wrong standard for determining what constitutes an

"adverse employment action" in c. 150E cases. We also conclude

that CERB erroneously overlooked the significance of the terms

of the collective bargaining agreement (CBA) between the city

and the union in determining whether Babcock's transfer to a

night shift constituted an "adverse employment action." In

claims brought under c. 150E by public employees who are union

members, such as this one, the terms and conditions of

employment must be assessed in the context of those conditions

as negotiated in the CBA. Here, Babcock received the negotiated

pay raise associated with assignment to a night shift as

provided for in the CBA, and he did not prove any other change

to the terms and conditions of his employment. Although we do

not foreclose the possibility that a union member's reassignment

from a day shift to a night shift (or vice versa) may, upon an

appropriate factual showing, constitute an adverse employment

action, no such showing was made here. Finally, CERB erred in

concluding that the city failed to meet its stage two burden of

production on the ground that the city did not come forward with

direct evidence of the reasons for Babcock's transfer. The city
5

could -- and did -- meet its stage two burden by producing

circumstantial evidence. We accordingly reverse.

Background. With the exception of one finding regarding

the amount of the pay differential (which we set out in the

margin),3 neither side argues that any of the hearing officer's

extensive written findings was not sufficiently supported by the

evidence. See Brookfield v. Labor Relations Comm'n, 443 Mass.

315, 321 (2005). Indeed, our own independent review of the

hearing transcript and exhibits confirms that all of the hearing

officer's subsidiary findings (with the exception of that same

finding) were amply supported by the evidence adduced during the

three-day evidentiary hearing she conducted. Those findings

were based not only on the evidence, but also on the hearing

officer's observation of the demeanor of the witnesses. With

that background in hand and reserving certain facts for later

discussion, we summarize the hearing officer's findings,

supplemented by certain undisputed facts, pertaining to the

charge that Babcock was transferred to the patrol division in

retaliation for his union activity.

3 The hearing examiner found that Babcock could earn more
working details on the day shift than he could earn by virtue of
the eight percent night shift pay differential. There was no
evidence to support this finding, a matter that both CERB and
the union implicitly acknowledge.
6

Babcock was hired as a patrol officer in 1987, and some

time thereafter, he was assigned to the traffic bureau. On

October 6, 2009, Babcock was promoted to the rank of sergeant in

the traffic bureau,4 where (among other things) he supervised

safety officers, traffic officers, and civilian employees who

worked within the traffic bureau. Over time, Babcock worked

different shift schedules. That said, from 2016 to 2018,

Babcock worked a 7 A.M. to 3 P.M. shift, Monday through Friday,

with weekends off.

The traffic bureau handles special events, such as road

races, as well as road construction projects. From 2012 to

2017, Babcock was involved in contacting the detail office to

staff officers for police details relating to special events.

However, in 2017, after there were issues with this arrangement,

the chief of police, David MacDonald, appointed Lieutenant

Daniel Walsh to oversee all details.5 As part of this change,

Babcock was instructed to direct detail staffing questions to

4 The union represents superior officers of the department,
including sergeants, lieutenants, and captains, with the
exception of those serving as executive officer and internal
affairs officer, who are exempt from the union's bargaining
unit.

5 In August 2016, the executive officer at the time reported
that Babcock had over the years involved himself in all areas of
details, which had proved problematic. As such, the department
organized details in such a way that Walsh handled construction
details, while Babcock handled details for special events.
7

Walsh and not to offer opinions on the staffing of details.

Notwithstanding these instructions, Babcock had a conversation

with a contractor about an upcoming line painting project.

Babcock contended that the conversation pertained solely to

whether the street should be closed during the painting project.

On the other hand, the contractor said that Babcock made a

recommendation regarding the number of detail officers to use

for the project. Walsh informed Babcock that Babcock's staffing

plan unnecessarily increased the number of detail officers and

had a negative effect on the day shift. In addition, Walsh

reminded Babcock that recommendations for detail staffing were

to come to him (Walsh). In November 2017, Babcock was reminded

again of these instructions, although it is not clear what

prompted the need for the reminder at that time.

Approximately four months later, on March 9, 2018, Parking

Control Officer Dorothy Crowley requested to speak with Babcock,

who was her supervisor. Crowley wished to speak with Babcock

about a past incident relating to the vandalization of her

bicycle, which she believed was caused by someone at the

department. She also alleged that her coworkers had vandalized

her car by carving "rat" into a side panel. During the

interaction, both Babcock and Crowley raised their voices and

became upset. The verbal altercation was loud enough that it

could be heard in some detail by those who were present in the
8

traffic bureau at the time and disrupted the workplace.

Ultimately, Crowley left in tears and was placed on

administrative leave. She has never returned to work.

When informed of this episode, the police chief instructed

Lieutenant George McMains to inquire further and to collect

statements from all officers who had been present when the

exchange between Babcock and Crowley took place. McMains

followed this instruction and collected numerous statements

including ones from Babcock and Crowley. Crowley stated that

she asked Babcock why he had not written a report about the past

incidents, and he then raised his voice and yelled at her,

"Don't put this on me, that was your decision, not mine."

Crowley went on to write that she told Babcock, "I can't go on

working where I don't feel safe and without help from my bosses.

I'm working in a police station. I should feel safe here and I

don't." Crowley told Babcock that she was "done and could not

take this anymore."

McMains wrote an investigative report, dated March 23,

2018, in which he concluded that Babcock had violated the

department's code of conduct concerning courtesy6 because, as a

6 See Newton Police Department Code of Conduct, section V.
Professional Conduct and Responsibilities, 14 ("Courtesy -- All
employees shall be courteous and considerate to the public and
respectful to their superior officers, to their fellow officers
and to all other members of the department. They shall be
9

supervisor, he could have conducted the discussion in private

out of earshot of other employees but had instead allowed the

disruptive behavior to take place with no regard for the fact

that other employees could hear the interaction.

One week later, on March 30, 2018, the police chief wrote a

letter of reprimand to Babcock in which he stated:

"All Newton Police Department employees are expected to be
professional and respectful to all other employees.
Supervisors are sometimes required to have difficult
conversations with subordinates and conduct themselves with
professionalism and decorum. In these types of occurrences
a supervisor should have these conversations in a private
setting out of the earshot of other employees. The Traffic
Bureau offers several places a private conversation could
be conducted. In this incident you made no effort to
relocate your conversation with PCO Crowley and engaged in
a contentious exchange. Your actions in this matter are
conduct unbecoming a Newton Police superior officer and
merit[] discipline."

The police chief found that Babcock violated the courtesy

provision of the code of conduct and stated that Babcock was

being issued a letter of reprimand as a result.

Three weeks later, on April 23, 2018, Babcock was informed

that he was being transferred from his day shift in the traffic

bureau to a night shift in the patrol division. When Babcock

asked the police chief why he was being transferred, the chief

responded that "he was the Chief, therefore he can do what he

wanted" and that the "conversation was over." The change to a

tactful in the performance of their duties and are expected to
exercise the utmost patience and discretion").
10

night shift resulted in Babcock receiving an eight percent pay

increase known as a "shift differential."

We now turn to Babcock's union activities. There is no

doubt that Babcock was deeply involved in union activities at

all pertinent times. From 2014 to 2016, Babcock was vice

president of the union, and he was part of the contract

bargaining team. In addition, Babcock was involved in many

communications between the union and the police chief regarding

labor-management issues. On occasion, the police chief's

comments could be construed to reflect antiunion sentiment. We

recite the hearing officer's specific findings on these matters

next.

1. Travel time. During a 2015 negotiating session, a

discussion about extending a travel time benefit to superior

officers became heated and the police chief said to someone

other than Babcock, "if you don't like what you are receiving

now as a supervisor, then go back to the patrolman union," or

words to that effect. The following year, on July 14, 2016,

when the parties were again negotiating over the contract, the

topic of travel time was again discussed. Babcock and others

informed the police chief that they believed he (the chief) was

trying to impermissibly implement a new policy regarding travel

time outside of contract negotiations. Babcock handed the

police chief a copy of the city's issues for negotiations of the
11

successor contract, which included travel time. The police

chief became upset, but he took the document outside of the room

to make a copy. When he returned, he said that he rejected the

document and threw it at Babcock, resulting in Babcock receiving

a paper cut. Babcock insisted on an apology, and the police

chief ultimately offered to Babcock the statement that "[I]

get[] hot, I get wordy, and I'm sure I didn't mean what I did"

or words to that effect.

The issue of travel time remained unresolved during the

summer of 2016, when Babcock demanded that the police chief

rescind changes to travel time for superior officers. The

police chief refused, taking the position that the union had

been notified of the change three years earlier and then failed

to request to bargain. In 2017, the union petitioned the joint

labor management committee to resolve outstanding contract

issues, and ultimately the parties met with a tripartite-

interest arbitration panel, which issued an award in 2019.

2. Grievances. In late September 2016, the police chief

ordered that an officer submit to a psychological test. At the

officer's request, Babcock was present at the meeting with the

police chief, and he argued with the chief over his authority to

order the test. The union filed a prohibited practice charge,

and Babcock testified for the union at the DLR hearing. After

the union filed the charge, Babcock and the police chief had
12

several conversations about the underlying matter. During one

of those conversations, the police chief told Babcock that the

union should stop fighting the matter and that Babcock was being

an "obstructionist."

In October 2017, Babcock filed two grievances on behalf of

the bargaining unit, alleging that the police chief violated the

CBA when he failed to hire a sergeant for a detail. On March

30, 2018 -- less than one month before Babcock was transferred

to the night shift in the patrol division -- Babcock filed a

grievance on behalf of all superior officers alleging that the

police chief violated the overtime, special leave, and hours of

work articles of the CBA.

As we noted at the outset of this opinion, the union filed

a charge of prohibited practice with the DLR alleging that

Babcock's transfer to the night shift in the patrol division

violated G. L. c. 150E, § 10 (a) (3), because it was taken in

retaliation for his protected union activities. After a three-

day evidentiary hearing, the hearing officer ruled in favor of

the city, making the extensive findings we have set out above.

The hearing officer acknowledged that Babcock was transferred to

the patrol division less than one month after he had filed a

grievance on behalf of another officer. But the hearing officer

concluded that timing alone was not enough to support a finding

that the city was unlawfully motivated in transferring Babcock.
13

Instead, the hearing officer credited the city's position that

Babcock was transferred to the patrol division because of the

altercation with Crowley the month before the transfer, as well

as Babcock's repeated failures within the previous year to

comply with the revised procedures regarding details. The

hearing officer gave particular weight to the fact that it was

McMains -- not the police chief -- who concluded that Babcock

had conducted himself in an unprofessional manner and that there

was absolutely no evidence that McMains harbored antiunion

animus or a negative opinion of Babcock. The hearing officer

also noted that there was no evidence to suggest that the police

chief influenced McMains in any way. In addition, the hearing

officer noted that it was reasonable for Babcock to be

transferred from the traffic bureau, where he had demonstrated

unprofessional conduct toward his subordinates, to the patrol

division, where he could have a fresh start as a supervisor.

The union appealed to CERB. CERB did not reject any of the

subsidiary factual findings made by the hearing officer.7

7 The hearing officer's findings were not immune from review
by CERB:

"Nonetheless, all subsidiary findings made by the [hearing
officer] are entitled to some deference by [CERB], and
those findings that are based on credibility determinations
by the [hearing examiner] are entitled to substantial
deference. Where it rejects such findings, [CERB] must
provide a considered articulation of the reasons underlying
14

Instead, CERB reversed the hearing officer's decision on the

ground that –- in the absence of direct evidence of the reason

Babcock was transferred to the night shift -- the city had

failed to meet its burden of production at the second stage of

the burden-shifting framework used for establishing retaliation.

This appeal followed.

Discussion. Where, as here, there is no direct evidence of

a retaliatory motive, a claim of retaliation under G. L.

that rejection. The deference required in review of
factual findings will permit [CERB] to conduct a meaningful
review of a [hearing officer's] findings to determine
whether they are significantly against the weight of the
evidence, or . . . suspect in light of the consistency and
inherent probability of testimony. The requirement of an
explanation will help ensure that [CERB] will carefully
consider any decision to reject a [hearing examiner's]
findings and that it will provide a reviewing court with an
adequate explanation on which to determine whether that
rejection was warranted. This test must be considered
against the fundamental rule rooted in due process that a
reviewing body ordinarily may not reverse a credibility
judgment made by the administrative or judicial officer who
actually heard the testimony of the witness and found him
or her to be credible. It is inappropriate to ask [an
appellate panel who has not heard the witness] to reverse a
judge's findings involving credibility, since he saw the
witnesses and we did not. As we have explained, a
determination of credibility made by one who actually heard
a witness is close to immune from reversal on appeal except
on the most compelling of showings." (Quotations,
footnote, and citations omitted.)

Hollup v. Worcester Retirement Bd., 103 Mass. App. Ct. 157, 160–
161 (2023). See Morris v. Board of Registration in Med., 405
Mass. 103, 109, cert. denied, 493 U.S. 977 (1989) (reviewing
board should not disregard trier of fact's findings on
credibility).
15

c. 150E, § 10 (a) (3), may be proved by following the burden-

shifting framework used for similar claims asserted under G. L.

c. 151B. See Forbes, 384 Mass. at 561-562 (burden of proof

should be allocated according to procedure described in G. L.

c. 151B cases). Under this burden-shifting paradigm, "the

employee must bear the ultimate burden of persuasion, but may

rely on a prima facie showing to shift to the employer a limited

burden of producing evidence." Id. at 562. At the first stage,

the plaintiff has the burden of producing evidence that the

plaintiff engaged in "protected activity" that "was plainly

visible to the employer," id. at 565 n.4, "that [the plaintiff]

suffered some adverse action, and that 'a causal connection

existed between the protected conduct and the adverse action.'"

Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C.,

474 Mass. 382, 406 (2016), quoting Mole v. University of Mass.,

442 Mass. 582, 591-592 (2004) (retaliation under G. L. c. 151B).

"Proof of a prima facie case shifts to the employer the

responsibility to . . . state a lawful reason and produce

supporting facts indicating that this reason was actually a

motive in the decision." Forbes, supra at 566. "The employer's

burden following a prima facie showing of [retaliation] is only

a responsibility to produce evidence. Once the employer has

proposed a reason and presented supporting facts, the

presumption of [retaliation] is dispelled." Id. At the third
16

stage, the employee has the burden to "prove by a preponderance

of evidence that the [employer's] asserted lawful reason was not

the real reason" for the adverse employment decision. Id. The

employee bears the over-all burden of proving that the adverse

employment action would not have been taken "but for"

retaliation. Id. at 565. "[I]f the evidence is in balance, the

employer must prevail." Id. at 566.

Against this well-established framework, we consider the

city's three arguments on appeal.

1. Stage one -- proof of "generally good work record."

The city argues that, at the prima facie stage, the union bore

the burden of proving that Babcock had a "generally good work

record." The argument is based on note 4 in Forbes, which

states that a "prima facie showing in an unfair labor practice

case might include proof that an employee had a generally good

work record, that he had engaged in protected activity, and that

this activity was plainly visible to the employer" (emphasis

added). Forbes, 384 Mass. at 565 n.4. The court reached this

nebulous statement by analogy to the prima facie showing

required under McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). But McDonnell Douglas was a race discrimination case --

not a retaliation claim -- and our cases have made clear that

"[a] claim of retaliation is separate and distinct from a claim

of discrimination." Verdrager, 474 Mass. at 405.
17

In cases of retaliation (whether under State or Federal

law) a plaintiff need not prove a "generally good work record"

at the prima facie stage. See Psy-Ed Corp. v. Klein, 459 Mass.

697, 707 (2011), quoting Mole, 442 Mass. at 591-592 ("to make

out a prima facie case of retaliation [under G. L. c. 151B], the

plaintiff must show that 'he engaged in protected conduct, that

he suffered some adverse action, and that 'a causal connection

existed between the protected conduct and the adverse action'");

Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169, 175

(1st Cir. 2015) (for Title VII retaliation claim, prima facie

case requires proof that plaintiff "undertook protected

conduct[,] her employer took a material adverse action against

her[,] [a]nd a causal nexus exists between elements one and

two"). Thus, whatever the Forbes court may have meant when it

said that a prima facie case of retaliation "might" include

proof that the employee had a generally good work record, we are

confident that the court did not intend to impose an obligatory

additional element of proof on the employee at the prima facie

stage of a retaliation claim.

To conclude otherwise would have the undesirable

consequence of making an employee's burden at the prima facie

stage of a retaliation claim under G. L. c. 150E more onerous

than the burden an employee bears under G. L. c. 151B. See

Verdrager, 474 Mass. at 406, quoting Mole, 442 Mass. at 591-592.
18

There is nothing to indicate that the Supreme Judicial Court

intended note 4 of Forbes to have that counterintuitive effect.

Indeed, to the contrary, the Forbes court held that "the rules

governing the burden of proof in sex discrimination cases should

apply in unfair labor practice cases as well," Forbes, 384 Mass.

at 567, thus signifying that the burdens under both statutes

should be the same. Our conclusion is further buttressed by the

fact that in note 4, the court used the word "might" (signifying

potentiality or possibility), and avoided the word "must"

(signifying a mandatory requirement). See Black's Law

Dictionary 992, 1019 (6th ed. 1990) ("might" means something is

possible; "must" has mandatory effect).

Nonetheless, we acknowledge that a small number of cases

since Forbes have repeated the language of note 4 in a way that

could potentially suggest a different reading. In Southern

Worcester County Regional Vocational Sch. Dist. v. Labor

Relations Comm'n, 386 Mass. 414, 420 (1982), the Supreme

Judicial Court noted that the plaintiff schoolteachers had

proved generally good work records as part of their proof of a

prima facie case of retaliation. In Babcock v. Labor Relations

Comm'n, 14 Mass. App. Ct. 650, 652 n.2 (1982), the language of

note 4 was quoted without further discussion in a note.

Similarly, the language of note 4 was included in a note of

School Comm. of Boston v. Labor Relations Comm'n, 40 Mass. App.
19

Ct. 327, 329 n.5 (1996), not only without elaboration but also

at odds with its own recitation of the required elements at the

prima facie stage in the body of the opinion. None of these

three cases examined the language of note 4 in any detail. And

none of these cursory subsequent case references persuades us

that the Supreme Judicial Court intended note 4 to impose an

additional element of proof on a G. L. c. 150E plaintiff at the

prima facie stage to establish a "generally good work record."

Accord School Comm. of Boston, 40 Mass. App. Ct. at 329 (1996)

(elements of retaliation claim under c. 150E); Babcock, supra at

651-652 (1982) (same).

2. Stage one -- adverse employment action. The city

argues that transferring Babcock to a night shift in the patrol

division did not constitute an adverse employment action given

that it came with an increase in pay. The phrase "adverse

employment action" does not appear in G. L. c. 150E, "but we use

the phrase to determine when an act of discrimination against an

employee [in 'hiring, tenure, or any other term or condition of

employment'] may be remedied under" c. 150E. Yee v.

Massachusetts State Police, 481 Mass. 290, 295 (2019). "Where

an employer discriminates against an employee but the

discriminatory act falls short of being an 'adverse employment

action,' c. [150E] affords the employee no remedy for the

discrimination." Id. at 295-296. "[A]n action taken by an
20

employer is an 'adverse employment action' where it is

'substantial enough to have materially disadvantaged an

employee.'" Id. at 296, quoting Psy-Ed Corp., 459 Mass. at 707-

708.

"'Material disadvantage for this purpose arises when
objective aspects of the work environment are
affected.' . . . The disadvantage must be objectively
apparent to a reasonable person in the employee's
position; 'subjective feelings of disappointment and
disillusionment' will not suffice."

Yee, supra at 296-297, quoting King v. City of Boston, 71 Mass.

App. Ct. 460, 468 (2008), and MacCormack v. Boston Edison Corp.,

423 Mass. 652, 663 (1996).

A lateral transfer may constitute an adverse employment

action under G. L. c. 150E if an employee can show that there

are material differences in "any term or condition of

employment." G. L. c. 150E, § 10 (a) (3). See Yee, 481 Mass.

at 297. Because the terms and conditions of public employees

who are union members are the product of required negotiation

between the municipality and the union, see G. L. c. 150E, § 6,

the determination of whether there has been a material change in

the terms or conditions of employment of a public employee

sufficient to constitute an adverse employment action must be

assessed against the provisions of the CBA. See Yee, supra at

299 n.8; Somerville v. Commonwealth Employment Relations Bd.,

470 Mass. 563, 572-573 (2015). CERB mistakenly overlooked this
21

important aspect of a retaliation claim under c. 150E.8 See

G. L. c. 150E, § 10 (a) (3).

Here, the disadvantage of working a night shift versus a

day shift was a matter of negotiation between the city and the

union, and the CBA contained a specific provision requiring that

sergeants such as Babcock receive an increase in pay known as a

"night shift differential" when assigned to a night shift.9

Babcock received the bargained-for pay differential when he was

transferred; accordingly, he suffered no adverse employment

action as measured against the terms of the CBA.

Nonetheless, CERB concluded that a reasonable person in

Babcock's shoes would view a "sudden involuntary transfer" from

a day shift with weekends and holidays off to a night shift with

a rotating schedule to be a "material and objective change in

terms and conditions of employment." To support this

conclusion, CERB cited to dicta in two Federal cases that a

8 Chapter 151B claims are not confined to public employees
who are union members whose employment is the subject of a CBA.

We note that the statutory language concerning the remedial
scope of c. 151B is not exactly the same as that for c. 150E;
c. 151B protects against retaliatory changes to an employee's
"compensation or in terms, conditions or privileges of
employment." G. L. c. 151B, § 4 (1).

9 The version of the CBA contained in the appellate record
refers to a seven percent night shift differential, but the
hearing examiner and CERB found that that the differential was
eight percent, a figure that neither side disputes.
22

lateral transfer from a day shift to a night shift (or vice

versa) might constitute an adverse employment action even if it

involves no reduction in pay.10 See Freedman v. MCI Telecomm.

Corp., 255 F.3d 840, 844 (D.C. Cir. 2001); Ginger v. District of

Columbia, 477 F. Supp. 2d 41, 50 (D.D.C. 2007), aff'd, 527 F.3d

1340 (D.C. Cir. 2008), cert. denied, 555 U.S. 1101 (2009).

However, CERB overlooked important language and distinctions in

those cases. Specifically, CERB overlooked that such a lateral

transfer may be an adverse employment action if "other changes

in terms, conditions, or privileges followed from the transfer."

Freedman, supra at 844. In Freedman, there was evidence that

the transfer interfered with the plaintiff's education. Id. In

Ginger, there was evidence that the plaintiffs lost their night

shift pay differential, lost daytime detail opportunities, lost

part-time work, and incurred additional childcare expenses.

Ginger, supra at 49-50.

That is not the situation here. Although Babcock contends

that his transfer to the night shift disadvantaged him because

he could earn more money on the day shift by working details

than he would receive from the night shift differential, there

was no evidence of this. Indeed, CERB itself acknowledged that

10Both cases were decided aversely to the employees on
dispositive motions.
23

there was no evidence that Babcock sustained a monetary loss as

a result of the transfer.

Instead, Babcock's testimony of the disadvantage of the

night shift was that

"[it] was a whole change of lifestyle, so for a few extra
dollars it really didn't put me at ease. I can make up the
money on details if I was really interested in the money.
It was more a normal life schedule and weekends off was
more important, family life, than getting an extra eight
percent every night."

We, of course, do not minimize the importance of family life or

the effect that a change in work schedule may have on it. But

that is not the question here, which instead turns on whether

the union established an objective material change in the terms

and conditions of Babcock's employment. In this context, it is

also important to take into account the inherent authority of

police chiefs to assign officers to duties and schedules as they

see fit to preserve public safety. See G. L. c. 41, § 97A;

Framingham v. Framingham Police Officers Union, 93 Mass. App.

Ct. 537, 542-543 (2018). In short, the union failed to

establish an objective and material effect on the terms or

conditions of Babcock's employment.

Our conclusion should not be read to mean that a change in

shift from day to night (or vice versa) may never be an adverse

employment action. We simply conclude that because the union

failed to establish either any deviation from the terms of the
24

CBA regarding night shifts or any other objective and material

effect on the terms and conditions of Babcock's employment, one

was not proved here.

3. Stage two -- employer's burden of production. Although

not necessary to the outcome of this appeal, we take this

opportunity to discuss the stage two burden of production since

it was the basis upon which CERB reversed the decision of the

hearing officer. As we have already stated, the employer's

burden at stage two is one of production, not of persuasion.

See supra at . CERB understood this burden to require that

the city produce direct evidence of the reason Babcock was

transferred to a night shift in the patrol division. In other

words, CERB concluded that the city could not meet its stage two

burden of production based only on circumstantial evidence.

This is incorrect as a matter of law. See Fowler v. Labor

Relations Comm'n, 56 Mass. App. Ct. 96, 100 (2002) (direct

evidence not required to meet stage one burden of proof for

G. L. c. 150E claim). Provided there is credible evidence from

which a reasonable inference may be drawn to support the

employer's articulated reason for the employment action, the

employer's burden of production at stage two is met. Cf. School

Comm. of Boston, 40 Mass. App. Ct. at 335-336 (lack of direct

evidence was so complete that no reasonable inference could be

drawn).
25

Here the city's position was that Babcock was transferred

out of the traffic bureau after he engaged in a disruptive

altercation with a subordinate in that bureau. The city also

pointed to Babcock's history of noncompliance with the new

system governing traffic details -- which was a function of the

traffic bureau. There was contemporaneous documentation of both

sets of issues. To be sure, there was no contemporaneous

documentation giving the reason for Babcock's transfer; the

police chief did not give Babcock any explanation for the

transfer when Babcock inquired, and he did not testify at the

evidentiary hearing. But the timing of the events, combined

with the hearing examiner's belief that McMains (who conducted

the investigation into Babcock's altercation with Crowley)

testified truthfully, and the lack of any evidence that McMains

harbored antiunion sentiment, were sufficient to create a

reasonable inference to support the city's articulated reason

for the transfer. Although a contrary inference also reasonably

could have been drawn given Babcock's involvement in union

activities around the same time, and comments by the police

chief that could be (but were not required to be) construed to

reflect antiunion views, the evaluation of competing reasonable

inferences is not the task at stage two of the burden-shifting

framework, but rather at stage three. As we have already said,
26

the stage two burden is not one of persuasion, simply

production.11

Conclusion. Because the union failed to meet its burden to

prove an adverse employment action, we reverse the decision of

CERB.

So ordered.

Because CERB concluded that the city had failed to meet
11

its stage two burden of production, CERB did not reach the stage
three analysis. It did, however, summarily state that were it
to reach stage three, it would decide it in favor of Babcock.
We need say nothing more about this aspect of CERB's decision
than that it does not satisfy the standard for reviewing
findings and credibility determinations of the hearing officer,
who was the trier of fact. See note 7, supra.