We hit a home run on this with the SJC!
The case is about when the Newton PD Chief transferred Jay Babcock, then union president, from admin days in Traffic to Patrol nights on the 4+2 with Last, First, Last, First.
The SJC establishes that (1) being moved from weekday day shift to 4+2 on nights can still be an adverse action despite a night differential, overruling the prior Appeals Court decision; (2) having a good work record is not a prerequisite to making out a prima facie case of discrimination; and (3) to rebut a union’s prima facie case of retaliation, the employer needs to show not just that there are facts in the record that could have formed a legitimate non-discriminatory reason for the adverse action; it has to present some evidence that the employer actually considered these legitimate reasons in deciding on the adverse action.
I think this case might be important in confirming how we approach retaliation cases for all of our clients and unions in Mass. in general. It could even go beyond that to assist employees in MCAD and other discrimination cases.
I will take credit for the original idea that after the city fired the chief and they either couldn’t or didn’t want him to testify, somebody from the city had to say that some “legitimate” reason actually played into the transfer. When nobody from the city testified about how the decision was reached, I thought we would have to win. That was how I tried the case before the DLR Hearing Officer. The DLR hearing officer found against us but was overruled by the CERB (their appellate body). The city appeal to the Appeals Court, which issued a ruling that said that Babcock’s transfer was not an “adverse action” because he got the night differential. We, along with the CERB, asked the SJC to take the case on FAR (Further Appellate Review). Even though they accept a very small percentage of FAR applications, they took ours and the result was this excellent victory.
John Becker and Lauren Kopec did most of the Appeals Court and SJC brief writing. I did argue the case before both the Appeals Court and the SJC.
Since this was originally a decision by the CERB (the appellate body of the DLR), the agency was on our side and their people provided excellent work. Also Patrick Bryant and Jillian Bertrand at Pyle Rome wrote an amici (friend of the court) brief for the Boston Superiors Officers Federation and Detectives Benevolent Society which certainly helped not just in its content but also to show that other police unions recognized the important of the case and were weighing in with us.
Thanks so much to MCOP for your willingness to stand behind the Newton Superiors Local and us to see this through to an ultimately successful conclusion.
Whats left is to see what economic damages Jay is entitled to for the illegal transfer.
Best.
Alan H. Shapiro
Sandulli Grace, P.C.
44 School Street, 11th Floor
Boston, MA 02108
