SJC: lateral transfer may constitute adverse employment action

A Jan. 29 ruling from the Supreme Judicial Court opens the door to a lateral transfer being considered an adverse employment action.

The decision is instructive for public sector employers when making lateral transfers of employees. It also serves as a reminder to maintain clear policies regarding transfers and promotions.

The plaintiff in the case, a Massachusetts State Police officer who worked as a lieutenant shift commander at State Police headquarters, requested a lateral transfer to a different troop located at Logan International Airport. The reason for the transfer request was to earn more overtime and paid details at the busier location, though his base pay would remain the same.

In the nearly four years following the plaintiff’s 2008 transfer request, seven troopers – all white males and five younger than him – had been transferred or promoted. The plaintiff, who is Asian-American, was not offered a transfer or interviewed for a transfer position.

In September 2012, the plaintiff wrote a letter to the superintendent complaining of discrimination on the basis of his age and ethnic background. Two days after the department received the plaintiff’s letter, it promoted a 49-year-old white male police sergeant to lieutenant and transferred him to the Logan troop, where he earned over $30,000 more per year in overtime and detail pay.

In April 2014, the plaintiff sued the State Police in Superior Court. The State Police moved for summary judgment on the grounds that it had not taken an “adverse employment action” against the plaintiff because he was requesting a lateral transfer (instead of a promotion) and there was no discriminatory animus. The Superior Court judge granted the motion for summary judgment.

The Supreme Judicial Court transferred the appeal to the court on its own motion to decide the issue of whether failure to grant a lateral transfer might be an adverse employment action.

Because a transfer to Logan offered more opportunities for overtime and paid details and could have increased the plaintiff’s overall compensation, the SJC found that failure to grant a lateral transfer may have been an adverse employment action on the part of the State Police. The SJC cautioned that such a determination must be made on a case-by-case basis, however, and remanded the matter to the Superior Court judge.