SJC hears dispute over whether police sergeant’s transfer was an adverse employment action

The Supreme Judicial Court on Thursday heard arguments in SJC-13655, City of Newton v. Commonwealth Employment Relations Board, over whether a patrol sergeant’s transfer to split overnight shifts amounted to an adverse employment action that could support a retaliation claim under state law.

Attorney Jacqueline Zawada, representing the City of Newton, told the court the record “specifically did not establish an adverse action” because there was no objective evidence of disadvantage in the terms and conditions of the sergeant’s employment and because the sergeant received an 8% pay differential. “We must consider a police officer as opposed to somebody like myself who works 9 to 5,” Zawada said, urging the justices to apply the “reasonable person in the plaintiff’s shoes” standard.

The Massachusetts Employment Relations Board, represented by Attorney James Sonkenberg, urged the court to treat hours as an expressly protected term or condition of employment under chapter 150E and to consider whether the schedule change — from a weekday daytime assignment to split overnight shifts with short off-duty intervals — was objectively and materially disadvantageous. “Sections 1, 2, and 6 of chapter 150E expressly identify hours of work as a term and or condition of employment,” Sonkenberg said.

The Massachusetts Coalition of Police’s attorney, Alan Shapiro, told the justices the record should not require a plaintiff to have an otherwise “clean work record” to maintain a retaliation claim. “I don’t think there’s any case where a court, an agency, said that this person is a victim of discrimination, but because they don’t have a good work record, we can’t find for that person,” Shapiro said.

Why it mat…