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 matters: the court’s interpretation will affect how labor and employment disputes are resolved when a collective bargaining agreement (CBA) provides pay differentials or other negotiated terms for less-desirable assignments. The question before the court combines: (1) whether a schedule change can be an objectively adverse change in terms and conditions of employment under G.L. c. 151B and c. 150E; (2) whether a pay differential (here, an 8% premium the record identifies as “about $6,000”) can negate an otherwise adverse action; and (3) the evidentiary burdens at successive stages of the statutory framework for public-employee retaliation claims.

Key facts and positions - The case involves a Newton police sergeant (identified in the hearing record as Sergeant Babcock) who had worked daytime hours Monday–Friday for years and was transferred to a split shift schedule that included overnight hours and shorter off-duty intervals between halves of the same workday. The transcript shows testimony that the change affected the sergeant’s family life and routine. - The record includes an acknowledged 8% pay differential for the transferred position; counsel described the increase as “about $6,000.” The City argued that substantial pay made the change objectively advantageous, while the Board and the union urged that pay does not automatically negate a material change to hours. - The City emphasized that the administrative hearing officer credited circumstantial evidence — including an internal affairs officer’s investigation and a letter from the police chief — supporting the city’s explanation that the transfer stemmed from an inability of the sergeant and a supervisor to work together. - The Board and the union stressed the timing and broader context, including prior supervisory interactions and a reprimand in the sergeant’s personnel file, arguing those facts supported suspicion of retaliatory motive and that the employer had not met its burden at the relevant stage of review.

Legal issues debated - Adverse-action standard: Counsel debated whether the appeals court correctly treated the CBA and the negotiated pay differential as dispositive of whether the transfer was adverse. Zawada argued the appeals court’s approach was proper given precedent that asks whether a reasonable person in the employee’s position would suffer a disadvantage; Sonkenberg and Shapiro urged the court to recognize hours as a statutory term or condition that can be materially changed regardless of negotiated differentials.

- Role of pay differential: The City argued that the 8% differential was substantial evidence that the transfer was not objectively disadvantageous. Justices questioned whether compensation can be treated as a “tie breaker” and whether collective bargaining context explains why pay was increased.

- “Generally good work record” / prima facie requirement: Counsel and justices addressed language in prior decisions suggesting a plaintiff must show satisfactory performance or a generally good work record as part of a prima facie case. Zawada and others pointed to cases and footnotes cited in the record; Shapiro and Sonkenberg disputed treating a generally good record as an absolute bar to relief and noted the precedent has not been uniformly applied as a required element.

- Stage 2 burdens and proof of legitimate reason: The parties debated the proper allocation of proof when an employee makes a prima facie case under the statutory framework governing public-employee retaliation. The Board and the union argued the employer must produce evidence that the employer’s proffered reason actually played a role in the decision; the City argued the employer’s production burden is limited and that credibility findings by the hearing officer (for example, crediting an investigator’s testimony and a written letter from the chief) supported the employer’s position.

Courtroom exchanges - Several justices pressed both sides on the evidentiary record and how appellate review should treat the hearing officer’s credibility determinations. One justice asked whether the record included testimony from Chief McDonough explaining the transfer; counsel for the City said the chief’s testimony was not required and that circumstantial evidence available on the record supported the hearing officer’s findings. - Justices also explored whether prior case law that required a showing of satisfactory work performance should be read as mandatory in Chapter 150E cases or as contextual guidance drawn from Title VII analogies.

What the transcript shows is not decided - The court did not announce a decision during the argument. The transcript records argument and questioning only.

Ending The justices heard roughly 40 minutes of argument from the City, the Employment Relations Board, and the Massachusetts Coalition of Police. The case will be taken under advisement; the court’s written decision will resolve whether, under Massachusetts law and the facts in this record, the transfer here was an objectively adverse change in terms and conditions of employment and whether the employer satisfied its evidentiary burdens.