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Massachusetts Superior Court Holds that a Lateral Transfer Can Constitute an Adverse Employment Action Under M.G.L. 151B; Affirms Jury Award of $750,000 in Emotional Distress and Punitive Damages

Written by Gauri Punjabi

A recent decision from a Massachusetts superior court reinforces what we’ve known for quite some time – be extremely mindful of the actions you take with respect to an employee lodging a complaint under M.G.L. 151B, the state’s anti-discrimination statute, or else you may face retaliation claim and hefty monetary damages.

In Kelley v. Commonwealth, Kelley, a public employee who worked as a sign shop clerk for the Massachusetts Department of Conservation and Recreation (“DCR”), was transferred to a different position away from her home after she complained that the romantic relationship between her supervisor and co-worker was making the workplace uncomfortable. DCR contended that Kelley could not satisfy one of the essential elements of her retaliation claim – the occurrence of an adverse employment action – because her lateral transfer was not a demotion and did not result in lower compensation.

The court rejected this argument holding that the “totality of the circumstances” surrounding Kelley’s transfer, which included changing her daily start time, shortening her lunch break, ordering her to take a course in a function that she did not perform, and transferring her to a position that required additional skills which she did not possess and for which the DCR had deemed Kelley unqualified in the past, demonstrated that the lateral transfer constituted an adverse employment action motivated by retaliatory animus. The court affirmed the jury’s award of $500,000 in emotional distress damages and $250,000 in punitive damages.

Thus, per Kelley, employers should not assume that a lateral transfer or taking other actions which do not change a complaining employee’s pay and benefits will not constitute adverse employment actions under the retaliation provisions of the state’s anti-discrimination law. To help protect against retaliation claims, any actions taken with respect to the terms and conditions of employment of an employee who has lodged a discrimination complaint should be taken for legitimate business reasons and be well-documented.

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