Yee v. Massachusetts State Police

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SJC-12485

WARREN YEE vs. MASSACHUSETTS STATE POLICE.

Suffolk. October 1, 2018. - January 29, 2019.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &

Kafker, JJ.

State Police. Anti-Discrimination Law, Employment, Age, Race.

Employment, Discrimination. Public Employment, Police,

Transfer.

Civil action commenced in the Superior Court Department on

April 3, 2014.

The case was heard by Paul D. Wilson, J., on a motion for

summary judgment.

The Supreme Judicial Court on its own initiative

transferred the case from the Appeals Court.

Jonathan J. Margolis (Beth R. Myers also present) for the

plaintiff.

Jesse M. Boodoo, Assistant Attorney General, for the

defendant.

The following submitted briefs for amici curiae:

Ben Robbins & Martin J. Newhouse for New England Legal

Foundation.

Simone R. Liebman & Constance M. McGrane for Massachusetts

Commission Against Discrimination.

Naomi Shatz for Fair Employment Project, Inc., & others.

2

GANTS, C.J. The plaintiff, a lieutenant in the

Massachusetts State police, filed suit alleging that he suffered

discrimination in violation of G. L. c. 151B, § 4, when he was

unjustifiably denied a transfer to a different troop station on

the basis of his age, race, or national origin.1 A Superior

Court judge granted the motion of the State police for summary

judgment, concluding that the plaintiff had not met his burden

of showing that the denial of his request for a lateral transfer

was an "adverse employment action," as required to prove an

1 General Laws c. 151B, § 4 (1), provides that it is an

unlawful practice for an employer to "refuse to hire or employ

or to bar or to discharge from employment [an] individual or to

discriminate against such individual," on the basis of a

protected status such as race or national origin, "in

compensation or in terms, conditions or privileges of

employment, unless based on a bona fide occupational

qualification." The Commonwealth and its political

subdivisions, including the State police, are covered by

c. 151B. Bain v. Springfield, 424 Mass. 758, 763 (1997).

The provision of c. 151B governing age discrimination

distinguishes between private sector employers and the

government as an employer. The section specifically covering

the Commonwealth and its subdivisions is phrased somewhat

differently from the section covering private employers.

Compare G. L. c. 151B, § 4 (1C), with G. L. c. 151B, § 4 (1B).

Section 4 (1C) provides that it is unlawful "[f]or the

commonwealth or any of its political subdivisions, by itself or

its agent, because of the age of any individual, to refuse to

hire or employ or to bar or discharge from employment such

individual in compensation or in terms, conditions or privileges

of employment unless pursuant to any other general or special

law." Because the State police have not alleged that Yee's

claim falls outside the scope of this section, we decline to

address whether the statute's omission of "discriminat[ion]"

would bar a claim for refusal to grant a request for transfer.

3

employment discrimination claim under c. 151B. We hold that

where there are material differences between two positions in

the opportunity to earn compensation, or in the terms,

conditions, or privileges of employment, the failure to grant a

lateral transfer to the preferred position may constitute an

adverse employment action under c. 151B. Because the plaintiff

has offered adequate evidence that he would have greater

opportunities to earn overtime and obtain paid details in the

troop to which he seeks transfer, we vacate the allowance of

summary judgment and remand the case for further proceedings.2

Background. We set forth the relevant facts in the summary

judgment record in the light most favorable to the nonmoving

party, which in this case is the plaintiff, reserving some facts

for our subsequent discussion of the legal issues.3 See Carey v.

New England Organ Bank, 446 Mass. 270, 273 (2006). The

plaintiff, Warren Yee, was born in Hong Kong in 1954 and later

immigrated and became a citizen of the United States. He

2 We acknowledge the amicus briefs submitted by the New

England Legal Foundation; the Massachusetts Commission Against

Discrimination; and the Fair Employment Project, Inc., GLBTQ

Legal Advocates & Defenders, Greater Boston Legal Services,

Jewish Alliance for Law and Social Action, Lawyers' Committee

for Civil Rights and Economic Justice, Massachusetts Employment

Lawyers Association, the Union of Minority Neighborhoods, and

the American Civil Liberties Union of Massachusetts.

3 The plaintiff has moved to supplement the summary judgment

record on appeal. We deny the motion and decide the appeal on

the same record available to the motion judge.

4

identifies as a Chinese Asian-American. Yee began working as a

police officer for the Massachusetts District Commission (MDC)

in 1980. He was promoted to the position of sergeant in 1986,

and was later transferred to the Massachusetts State police in

1992, after the State police merged with the MDC. In 1998, he

was promoted to the position of lieutenant. From 2005 until at

least the time this complaint was filed, he has served as a

lieutenant shift commander at the headquarters of State police

Troop H, located in the South Boston section of Boston.

In December 2008, Yee requested a transfer to State police

Troop F, the unit headquartered at Logan International Airport

in the East Boston section of Boston. State police lieutenants

earn the same base pay and benefits regardless of station, but

Yee testified that he wanted to transfer to Troop F because he

"knew that there was better overtime and [paid details] at Troop

F."4 Yee claims to have "taken steps to keep his interest in

that transfer known to his superiors continuously since that

request was first made."

The State police has no written policy governing transfers

of lieutenants. When there is an open position for a lieutenant

in a troop, the troop commander nominates a candidate, but the

Lieutenant Warren Yee speaks Chinese, and he testified

4

that he also wanted to transfer to Troop F because he could "be

useful" at the airport, where there were many travelers of Asian

descent.

5

decision whether to approve the nomination rests with the

Superintendent of the State police. The troop commander has

broad discretion in nominating a candidate for transfer.

During the time period between his initial 2008 request and

September 2012, the State police had either transferred or

promoted seven troopers to Troop F in the position of

lieutenant; all were white males. Five out of those seven

troopers were younger than Yee when they became Troop F

lieutenants. Yee was never offered a transfer to Troop F and

was never interviewed regarding a transfer position.

On September 20, 2012, Yee wrote a letter to the

Superintendent and others complaining of discrimination on the

basis of his age or ethnic background. On September 23, 2012,

two days after the letter was received, a forty-nine year old

white male police sergeant in Troop H, Shawn Lydon, was promoted

to lieutenant and transferred to Troop F even though he had not

requested a transfer to Troop F. Lydon served in Troop F for

approximately two years, during which time he earned over

$30,000 more per year in overtime and detail pay than he had

when he served in Troop H. When Lydon was later transferred

back to Troop H, his annual overtime and detail earnings dropped

by about $30,000 per year. After Yee sent his letter

complaining of discrimination, at least two other lieutenants

6

apart from Lydon were transferred to or promoted within Troop F;

both were white males.

On April 3, 2014, Yee filed a complaint in the Superior

Court, alleging that the State police discriminated against him

on the basis of race, age, and national origin by failing to

transfer him to Troop F. The State police moved for summary

judgment, contending that no adverse employment action had been

taken against Yee and that, even if there had been, there was no

discriminatory animus that motivated the State police's decision

not to transfer him.

The judge granted the motion for summary judgment,

concluding that the summary judgment record would not permit a

jury reasonably to find that Yee "was subjected to an adverse

employment action when the State police declined to transfer him

laterally from one troop to another." Citing MacCormack v.

Boston Edison Co., 423 Mass. 652, 663 (1996), the judge declared

that a plaintiff who brings an employment discrimination claim

"must show an adverse employment action that materially changes

objective aspects of the plaintiff's employment." In the

context of this case, the judge determined that, for Yee to

avoid summary judgment, there needed to be sufficient evidence

in the record to allow a jury reasonably to conclude that Yee

"lost money when the State [p]olice declined to transfer him to

Troop F," either by showing that "a lieutenant at Troop F

7

automatically earned more money than a lieutenant at Troop H,"

or by presenting "statistical data showing that lieutenants at

[Troop F] routinely earn more money than lieutenants at [Troop

H]." The judge found that the only evidence of a "potential

earnings differential between Troop H and Troop F" was the

additional income that Lydon earned from overtime and details

when he transferred from Troop H to Troop F, and his

corresponding drop in these earnings after he returned to Troop

H. The judge concluded that this evidence was insufficient to

defeat summary judgment because it was "entirely anecdotal,

concerning the experience of only one of the nine potential

comparators who became lieutenants at Troop F in the relevant

period," and because Yee had offered no evidence that would

permit a reasonable jury to conclude that Yee "would have worked

the same paid details and just as much overtime" as Lydon did.

Yee timely appealed. We transferred Yee's appeal to this

court on our own motion to decide whether the denial of his

request for a lateral transfer may constitute an adverse

employment action under G. L. c. 151B, § 4, and if so, whether

the motion judge erred in granting the State police's motion for

summary judgment.

Discussion. Our review on summary judgment is de novo.

LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 318

(2012). In determining whether an employee's discrimination

8

claim survives a motion for summary judgment, we apply the

three-stage, burden-shifting framework from McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-805 (1973) (McDonnell

Douglas). See Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680-

681 (2016). We discuss each stage of the McDonnell Douglas

framework in turn.

1. Adverse employment action. Under the first stage of

McDonnell Douglas, Yee bears the burden of producing evidence of

a prima facie case of discrimination that would allow a jury to

infer that: (1) he is a member of a class protected by G. L.

c. 151B; (2) he performed his job at Troop H at an acceptable

level; (3) his transfer request was treated differently from

that of another person who was not a member of his protected

class but otherwise was similarly situated; and (4) the

continued denial of his request for a lateral transfer to Troop

F was an adverse employment action.5 See Trustees of Health &

Hosps. of Boston, Inc. v. Massachusetts Comm'n Against

Discrimination, 449 Mass. 675, 681-682 (2007) (Trustees of

Health & Hosps.); Verdrager v. Mintz, Levin, Cohn, Ferris,

Glovsky & Popeo, P.C., 474 Mass. 382, 396 (2016). The State

5 The elements of the prima facie case may vary depending on

the nature of the discrimination claim. See McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 n.13 (1973); Wheelock College

v. Massachusetts Comm'n Against Discrimination, 371 Mass. 130,

135 n.5 (1976).

9

police contends that Yee failed to meet this burden only because

the denial of a lateral transfer from one troop to another is

not an adverse employment action.

The phrase "adverse employment action" does not appear in

G. L. c. 151B, but we use the phrase to determine when an act of

discrimination against an employee "in compensation or in terms,

conditions or privileges of employment" may be remedied under

c. 151B.6 Where an employer discriminates against an employee

6 We often do not distinguish among "terms," "conditions,"

and "privileges" of employment, or attempt to define them

separately. See, e.g., College-Town, Div. of Interco, Inc. v.

Massachusetts Comm'n Against Discrimination, 400 Mass. 156, 162

(1987) ("Clearly, within the broad sweep of [terms, conditions,

or privileges of employment] falls conduct which creates a

sexually harassing work environment"); Lopez v. Commonwealth,

463 Mass. 696, 707 (2012) (right to equal opportunities for

promotion without discrimination falls within "right to be free

from discrimination in the terms, conditions, and privileges of

employment"). We attempt to do so here, defining these words as

they are commonly used in our case law, albeit recognizing that

the phrase "terms, conditions, or privileges" is "general and

broad, and must be determined on a case by case basis"

(quotation and citation omitted). School Comm. of Newton v.

Newton Sch. Custodians Ass'n, Local 454, SEIU, 438 Mass. 739,

749 (2003). See also Randlett v. Shalala, 118 F.3d 857, 862

(1st Cir. 1997) (same language in Title VII is "pretty open-

ended"). We therefore decline to attach any strict limits to

the definitions we offer.

The "terms of employment" govern the employment

relationship, such as personnel policies, see Weber v. Community

Teamwork, 434 Mass. 761, 780-781 (2001), or contractual

provisions that may be either explicit or implied. See Black's

Law Dictionary 1698-1699 (10th ed. 2014).

The "conditions of employment" may refer to the economic or

financial conditions of employment, see Meritor Sav. Bank, FSB

v. Vinson, 477 U.S. 57, 64 (1986), such as wages and hours,

10

but the discriminatory act falls short of being an "adverse

employment action," c. 151B affords the employee no remedy for

the discrimination. King v. Boston, 71 Mass. App. Ct. 460, 469

(2008) ("a successful claim of employment discrimination

vacation pay, and sick leave, and therefore some may overlap

with both the "terms of employment" and "compensation." See

G. L. c. 151B, § 4 (1). "Conditions of employment" may also

encompass the general environment, atmosphere, or quality of the

work place. See, e.g., Ocean Spray Cranberries, Inc. v.

Massachusetts Comm'n Against Discrimination, 441 Mass. 632, 648

(2004); Gilbert's Case, 253 Mass. 538, 540 (1925); Windross v.

Village Automotive Group, Inc., 71 Mass. App. Ct. 861, 868-869

(2008). For example, the conditions of employment are often

discussed in sexual harassment cases in the context of the

creation of an abusive working environment. See, e.g., Meritor

Sav. Bank, FSB, supra at 67; McKenzie v. Illinois Dep't of

Transp., 92 F.3d 473, 479 (7th Cir. 1996).

A "privilege of employment" is an unmandated benefit that,

"though not a contractual right of employment," is nonetheless

customarily provided by an employer to its employees, and is

therefore "part and parcel of the employment relationship [and]

may not be doled out in a discriminatory fashion." Hishon v.

King & Spalding, 467 U.S. 69, 75 (1984). See also Randlett,

supra at 862 (hardship transfers were commonly granted by

employer and therefore were "arguably a 'privilege' of

employment"); Blackie v. Maine, 75 F.3d 716, 726 (1st Cir.

1996).

Our definitions of terms, conditions, and privileges of

employment here are limited to the context of enforcement of

G. L. c. 151B. We recognize, for example, that pursuant to

G. L. c. 150E, § 6, municipalities are required to negotiate

with public employee unions with respect to the "terms and

conditions" of union member employment. As to the definitions

of terms and conditions of employment in that context, we refer

to our existing case law. See, e.g., Somerville v. Commonwealth

Employment Relations Bd., 470 Mass. 563, 570 (2015) (municipal

contributions to retiree health insurance premiums not "term or

condition of employment" subject to mandatory collective

bargaining).

11

requires a showing that the plaintiff has been subjected to some

adverse action that is material"). Therefore, in defining the

phrase, we are essentially defining the remedial scope of

c. 151B. Because the Legislature has directed that c. 151B

"shall be construed liberally for the accomplishment of its

purposes," G. L. c. 151B, § 9, we must define the phrase with

the liberality required to meet the statute's broad remedial

goals. See Depianti v. Jan-Pro Franchising Int'l, Inc., 465

Mass. 607, 620 (2013) ("Employment statutes in particular are to

be liberally construed, with some imagination of the purposes

which lie behind them" [quotation and citation omitted]).

"Cases have employed the phrase 'adverse employment action'

to refer to the effects on working terms, conditions, or

privileges that are material, and thus governed by the statute,

as opposed to those effects that are trivial and so not properly

the subject of a discrimination claim." King, 71 Mass. App. Ct.

at 468, and cases cited. We have said that an action taken by

an employer is an "adverse employment action" where it is

"substantial enough to have materially disadvantaged an

employee." Psy-Ed Corp. v. Klein, 459 Mass. 697, 707-708

(2011). "Material disadvantage for this purpose arises when

objective aspects of the work environment are affected." King,

supra. The disadvantage must be objectively apparent to a

reasonable person in the employee's position; "subjective

12

feelings of disappointment and disillusionment" will not

suffice. MacCormack, 423 Mass. at 663. Because we focus on a

reasonable person in the employee's position, we examine whether

an employee has suffered an "adverse employment action" on a

case-by-case basis. King, supra at 470, quoting Blackie v.

Maine, 75 F.3d 716, 725 (1st Cir. 1996). A lateral transfer

from an evening to a day shift may be an adverse employment

action to one employee, but be welcomed by another. See Bell v.

Gonzales, 398 F. Supp. 2d 78, 97 (D.D.C. 2005) (whether loss of

overtime constitutes adverse employment action is fact-specific

inquiry because some employees desire to work overtime and

others do not).

Here, Yee contends that the failure to grant him the

transfer was an adverse employment action because Troop F

offered more opportunities for overtime and paid details than

Troop H and therefore offered him a greater opportunity to

increase his over-all compensation, even though his base salary

and benefits would be unaffected by the transfer. We have not

previously reached the question whether a failure to grant a

lateral transfer may constitute an adverse employment action.

The failure to grant a lateral transfer is certainly an

"employment action" by an employer where an employee with

supervisory authority, whose actions we impute to the employer,

see College-Town, Div. of Interco, Inc. v. Massachusetts Comm'n

13

Against Discrimination, 400 Mass. 156, 165 (1987), makes a

decision to choose someone else for the lateral position or

decides not to transfer the employee seeking the transfer to

that position. See Weber v. Community Teamwork, Inc., 434 Mass.

761, 767-769 (2001). And the denial of a transfer to an

employee is undoubtedly "adverse" where it would deprive the

employee of the potential to earn additional "compensation,"

which -- if motivated by discriminatory animus -- G. L. c. 151B,

§ 4, expressly forbids. We thus conclude that where an employee

can show that there are material differences between two

positions in the opportunity for compensation, or in the terms,

conditions, or privileges of employment, the failure to grant a

lateral transfer to the preferred position may constitute an

adverse employment action under c. 151B. See Harrison v. Boston

Fin. Data Servs., Inc., 37 Mass. App. Ct. 133, 137-138 (1994)

(employee made out prima facie case of discrimination by

asserting, inter alia, that she was not provided with training

and educational opportunities given to white employees).

We note that a number of Federal courts have confronted

this question and arrived at the same conclusion. In

interpreting G. L. c. 151B, we often look to case law construing

the analogous Title VII of the Civil Rights Act of 1964, as

14

amended, 42 U.S.C. § 2000e-2(a)(1) (Title VII).7 See, e.g.,

College-Town, Div. of Interco, Inc., 400 Mass. at 163; Brown v.

F.L. Roberts & Co., 452 Mass. 674, 680 (2008). A number of

Federal courts have expressly held that the denial of

opportunities to work overtime may suffice to support an

unlawful discrimination claim. See, e.g., Garmon v. National

R.R. Passenger Corp., 844 F.3d 307, 314 (1st Cir. 2016)

("decreased overtime opportunities could cause a 'material'

change in the conditions of a plaintiff's employment"); Lewis v.

Chicago, 496 F.3d 645, 654 (7th Cir. 2007) (denial to Chicago

police officer of opportunity to travel to Washington, D.C., to

work detail assignment involving crowd control was adverse

action, not only because she would have been paid overtime for

7 Title 42 U.S.C. § 2000e-2(a)(1) provides, in part:

"It shall be an unlawful employment practice for an

employer --

"(1) to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any

individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such

individual's race, color, religion, sex, or national origin

. . . . "

We also may look to employment cases interpreting 42 U.S.C.

§ 1981, which applies the same legal framework as Title VII.

Bhatti v. Trustees of Boston Univ., 659 F.3d 64, 70 (1st Cir.

2011). Title 42 U.S.C. § 1981(a) and (b) similarly prescribes:

"All persons . . . shall have the same right . . . to make and

enforce contracts . . . [including] the enjoyment of all

benefits, privileges, terms, and conditions of the contractual

relationship."

15

that particular assignment, but also because "she lost her

ability to move forward in the component of her career of being

a police officer at recurring large scale public gatherings"

and, in turn, "lost the potential to earn many hours of

overtime" in future); Robinson v. District of Columbia, 275 F.

Supp. 3d 95, 105-106 (D.D.C. 2017) (potential for lost overtime

pay may constitute adverse action where it was known to employer

that employee desired opportunity to work overtime); Bell, 398

F. Supp. 2d at 97-98 (same). See also Mazyck v. Metro. Transp.

Auth., 893 F. Supp. 2d 574, 589 (S.D.N.Y. 2012) (lost

opportunities to earn overtime pay constituted adverse

employment action). Cf. Bush v. American Honda Motor Co., 227

F. Supp. 2d 780, 790 n.8 (S.D. Oh. 2002) (lost opportunity to

receive potential future bonuses or promotions may amount to

adverse employment action).8 It would be a curious result for us

8 In this analysis, our citations to Federal cases concern

discussions of Title VII discrimination claims, as opposed to

retaliation claims. A split in the Federal Courts of Appeals

existed regarding whether the meaning of an "adverse action"

differed between discrimination and retaliation claims under

Title VII until the Supreme Court resolved the dispute in

Burlington N. & Santa Fe R. R. v. White, 548 U.S. 53, 60, 64

(2006). The Supreme Court held that adverse actions under the

antidiscrimination provision are limited to conduct affecting

"compensation, terms, conditions, or privileges of employment,"

id. at 62, but in the antiretaliation context, the challenged

action must only have "dissuaded a reasonable worker from making

or supporting a charge of discrimination" (citation omitted),

id. at 68. In deciding this case, we need not reach the

question whether to apply a different standard to defining

16

to interpret c. 151B to provide less protection against

employment discrimination than Title VII, given that we at times

interpret G. L. c. 151B to provide more protection against

employment discrimination than Title VII, in part because of the

Legislature's direction that c. 151B is to be applied liberally.

See G. L. c. 151B, § 9; Cuddyer v. Stop & Shop Supermkt. Co.,

434 Mass. 521, 536 (2001). There is no such comparable language

in Title VII.

We reject the argument of the State police that the denial

of a lateral transfer may be an adverse employment action only

where the transfer would have constituted a promotion. To

satisfy the element of an adverse employment action in the prima

facie case, it suffices that an employee who is denied a lateral

adverse employment actions in the retaliation context under G.

L. c. 151B.

Additionally, in citing to Federal cases that support Yee's

claim that loss of opportunity to earn overtime and paid detail

compensation may constitute an adverse employment action, we are

aware that another provision of Title VII -- 42 U.S.C. § 2000e-

2(a)(2) -- provides that it is an unlawful practice for an

employer "to limit, segregate, or classify his employees or

applicants for employment in any way which would deprive or tend

to deprive any individual of employment opportunities or

otherwise adversely affect his status as an employee, because of

such individual's race, color, religion, sex, or national

origin" (emphasis added). General Laws c. 151B does not contain

a comparable provision expressly referencing "employment

opportunities." However, none of the cases discussed herein

relies on § 2000e-2(a)(2) or its reference to "employment

opportunities." We are therefore satisfied that it is proper to

consider Federal Title VII cases that have analyzed the

comparable adverse action requirement.

17

transfer puts forward evidence of any "objective indicator of

desirability" that would "permit a reasonable factfinder to

conclude that the sought for position is materially more

advantageous." Beyer v. County of Nassau, 524 F.3d 160, 165 (2d

Cir. 2008). We conclude that Yee's desire to transfer to a

troop where he had more opportunity to earn additional

compensation through the greater availability of overtime and

paid details is an objective indicator of desirability.9

The closer question is whether Yee met his burden of

producing adequate evidence that Troop F offered greater

opportunities for overtime and paid details than Troop H. The

only evidence before us, other than Yee's own assertions, is

testimony from a single comparator, Lydon, who earned

approximately $30,000 more per year in overtime and detail

compensation during the two years after he left Troop H to work

9 Because Yee argues that the denial of his requested

lateral transfer was an adverse employment action primarily

because it denied him the potential for additional compensation

through overtime and detail pay, we do not address whether the

denial of the lateral transfer would have been an adverse

employment action had he sought the transfer only to use his

Chinese language skills to assist Chinese visitors who use the

airport. Nor do we address whether an employee would have a

viable discrimination claim -- on the basis of a hostile work

environment or a denial of a "privilege" of employment, such as

being considered for a customary benefit, see King v. Boston, 71

Mass. App. Ct. 460, 471 (2008), citing Hishon, 467 U.S. at 76-77

-- if the employee could establish that the leadership of a

particular work station will not accept for transfer persons of

a particular protected class under c. 151B.

18

in Troop F, and then earned approximately $30,000 less per year

after he was transferred back to Troop H. In evaluating whether

Yee met this threshold showing, we note that the "initial burden

of establishing a prima facie case is not intended to be

onerous." Trustees of Health & Hosps., 449 Mass. at 683,

quoting Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 45

(2005). "It is meant to be a 'small showing' that is 'easily

made.'" Trustees of Health & Hosps., supra, quoting Chungchi

Che v. Massachusetts Bay Transp. Auth., 342 F.3d 31, 38 (1st

Cir. 2003). To establish a prima facie case, the plaintiff

bears only the burden of production, which is satisfied by

furnishing evidence in support of each element; the burden of

persuasion that an element of the prima facie case has not been

established rests with the defendant on summary judgment, even

though it rests with the plaintiff at trial. Sullivan, supra at

39. As to the evidence proffered by the plaintiff, we view it

in the light most favorable to the plaintiff, accepting all

reasonable inferences favoring the plaintiff that flow from that

evidence. Premier Capital, LLC v. KMZ, Inc., 464 Mass. 467,

474-475 (2013).

Generally, comparator evidence is intended to prove

discrimination, such as where an employee who claims she was

rejected from a job because of discrimination offers evidence

that the person who obtained the position was less qualified

19

than she. Trustees of Health & Hosps., 449 Mass. at 682-683.

Here, Yee offered comparator evidence, to show both that he was

denied the lateral transfer because of his race, national

origin, or age, and that the denial of the lateral position was

an adverse employment action because of the comparator's change

in earnings at Troop F.

We recognize that the summary judgment record regarding the

difference in potential earnings from overtime and paid details

between Troop H and Troop F is rather sparse, where it is

limited to the change in earnings of a single comparator, but we

conclude that it suffices to yield a genuine dispute of material

fact as to this element of the prima facie case of

discrimination. Lydon was a close comparator to Yee; he had

been assigned to Troop H before being promoted to lieutenant,

was transferred to Troop F, and then returned to Troop H. It is

theoretically possible that the opportunities for overtime and

paid details were the same in Troop H and Troop F, and that

Lydon simply availed himself of more of those opportunities when

he transferred to Troop F, and then chose not to when he

returned to Troop H. But it is a more reasonable inference --

and one to which Yee is entitled at summary judgment -- that

Lydon's increase in earnings from overtime and paid details

derived, at least in part, from the greater opportunities

available in Troop F to work overtime and obtain paid details.

20

And, although the State police was in possession of evidence

regarding the earnings from overtime and paid details of the

other potential comparators, it did not offer such evidence to

satisfy its burden of persuasion that the earnings opportunities

were the same in Troop F as in Troop H. Although evidence from

a single comparator might prove to be insufficient to prevail at

trial, we require only a modest evidentiary showing from

plaintiffs to satisfy the prima facie stage of summary judgment.

Therefore, we conclude that the judge erred in determining that

Yee had failed to meet his burden of showing a prima facie case

of discrimination.

2. Discrimination. Because the judge granted summary

judgment to the State police on the ground that Yee had failed

to show an adverse employment action, he never reached the issue

whether there was a genuine issue of material fact whether the

denial of Yee's request for a lateral transfer was motivated by

discriminatory animus. We exercise our discretion to remand the

matter to the motion judge to allow him to decide this issue.

See Esler v. Sylvia-Reardon, 473 Mass. 775, 781 (2016); Christo

v. Edward G. Boyle Ins. Agency, Inc., 402 Mass. 815, 819 (1988).

On remand, the motion judge will need to apply the second

and third stages of the McDonnell Douglas summary judgment

framework. At the second McDonnell Douglas stage, where the

employee has successfully made out a prima facie case, "the

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burden of production shifts to the employer to articulat[e] a

legitimate, nondiscriminatory reason" for its decision to take

the adverse action (quotation omitted). Verdrager, 474 Mass. at

397, quoting Blare v. Husky Injection Molding Sys. Boston, Inc.,

419 Mass. 437, 441 (1995). The burden of the State police here

is not meant to be onerous. Blare, supra at 442. Even if the

reasons given are arguably suspect, so long as the State police

has produced a lawful reason backed by some credible evidence,

it has satisfied this burden. Matthews v. Ocean Spray

Cranberries, Inc., 426 Mass. 122, 128 (1997). However, its

explanation must not be wholly unbelievable such that an

underlying discriminatory motive is obvious. See Wheelock

College v. Massachusetts Comm'n Against Discrimination, 371

Mass. 130, 138 (1976).

If the judge concludes that the State police has carried

its burden of rebutting Yee's prima facie case with a

nondiscriminatory explanation for denying Yee's request for the

lateral transfer, the judge will reach the third and final

McDonnell Douglas stage, where the burden of production shifts

back to Yee to "produce evidence that the employer's articulated

justification [for the adverse action] is not true but a

pretext." Verdrager, 474 Mass. at 397, quoting Blare, 419 Mass.

at 443. Yee may satisfy this burden by offering evidence which,

when viewed in the light most favorable to Yee, is sufficient to

22

convince a reasonable jury that the reasons the State police

offered for transferring Lydon instead of him were not the real

reasons, thereby inviting the inference that discrimination was

the motivating reason. See Verdrager, supra.

Finally, although we have denied Yee's motion to supplement

the summary judgment record on appeal, see note 3, supra, we

recognize that a developed factual record is particularly

critical where, as here, wholly subjective procedures are used

to determine which candidates receive a lateral transfer. See

Smith College v. Massachusetts Comm'n Against Discrimination,

376 Mass. 221, 231 (1978) ("[T]he opportunity for unlawful bias

is particularly great in such cases. A most detailed and

careful analysis of the facts is required"). On remand, the

motion judge may decide whether to permit the parties to

supplement the summary judgment record in determining whether

there is a genuine issue of material fact whether the denial of

Yee's request for a lateral transfer was motivated by

discriminatory animus.

Conclusion. The order allowing the motion of the State

police for summary judgment is vacated, and the case is remanded

to the motion judge to determine whether there is a genuine

issue of material fact whether discrimination was the motivating

reason for the denial of the plaintiff's request for transfer.

So ordered.