Chief’s Involuntary reassignment of Grievant did not violate State Labor Law
Massachusetts public employers cannot discriminate against employees who engage in “concerted, protected activity” under G.L. c.150E, the public sector collective bargaining law. In order to prevail in an unlawful discrimination case, the aggrieved employee or union must show that (1) the employee engaged in protected, concerted activity under c.150E; (2) the public employer knew of this activity; (3) the employer took “adverse action” against the employee; and (4) this adverse action was motivated by a desire to penalize or discourage the concerted, protected activity.
In City of Holyoke, MUP-05-4503 (January 9, 2009), a member of the City’s police union was reassigned from a detective to a patrol position just two months after filing a grievance against the City. The police union filed a charge, claiming that the reassignment retaliated against the officer for filing the grievance. Based on the above test, CERB ruled that the union provided ample evidence of the first two elements, but failed to do so on the latter two. The filing of a grievance counts as concerted, protected activity under c.150E, because the grievance, even if from an individual attempts to enforce a collectively-bargained agreement. The City agreed that it knew about the grievance, thereby meeting the second criterion. However, the Commission ruled that the Holyoke Chief’s involuntary reassignment of the grievant from the detective to uniform patrol did not constitute an “adverse action.”
CERB acknowledged that a reassignment to a less preferable position or to a position with reduced benefits is an “adverse action.” However, the union’s argument that the transfer constituted discrimination was complicated by the grievant’s stated desire to leave the detective division (although he requested a transfer back to narcotics, where he previously worked) and his mediocre performance in the detective and narcotics divisions (at least as viewed from the Chief’s admittedly biased perspective). In somewhat similar circumstances, the U.S. Supreme Court ruled that a personnel action is adverse if “a reasonable employee would have found the challenged action materially adverse, which in this context means it might well have dissuaded a reasonable worker from making or supporting a charge [ ].” Burlington Northern & Santa Fe Railway v. White, No. 05-259 (June 22, 2006).
CERB further rejected the union’s argument that the reassignment was adverse given subsequent, mild taunts of co-workers. CERB dismissed these comments (such as resetting the screensaver to mock the grievant’s new assignment) as mere jocular, “subjective opinions.” Given that the opinion of other officers is highly relevant to determine whether the reassignment may be reasonable viewed as adverse, CERB’s finding here is questionable. CERB may just have been disarmed by the deprecating tenor of the other officer’s comments.
As to the last criterion, the Commission ruled that the two-month gap between the grievance and the reassignment was insufficient to establish even an inference that the Chief’s motive was retaliatory.
In the future, unions and employees aggrieved by a change from a special assignment may wish to emphasize more concrete differences between the positions, such as the flexible schedules, increased overtime opportunities, and the like. Further, they may wish to produce independent evidence that the grievant is capable of performing the job that he or she seeks.