King v. City of Boston

883 N.E.2d 316

71 Mass. App. Ct. 460

Geniveve KING & others¹ v. CITY OF BOSTON.

No. 06-P-1013.

Appeals Court of Massachusetts, Suffolk.

Argued October 16, 2007.

Decided March 28, 2008.

Shannon Liss-Riordan, Boston, for the plaintiffs.

Daniel S. McCabe, Jr., Boston (Mary Jo Harris with him) for the defendant.

Patrick N. Bryant, Boston, for Boston Police Patrolmen's Association, Inc., International Union of Police Associations, Local 16807, AFL-CIO, amicus curiae, submitted a brief.

Present: COWIN, KATZMANN, & MEADE, JJ.

COWIN, J.

Plaintiffs Geniveve King, Debra Jenkinson, and Anne Stuart, each a female superior police officer² of the Boston police department (department), aggrieved by the failure of the department to provide female superior officers with rank-specific locker rooms³ similar to those provided to male superior officers, commenced this action for gender discrimination on the part of the defendant, the city of Boston, see G.L. c. 151B, § 4(1), as well as for retaliation by the defendant, see G.L. c. 151B, § 4(4) and (4A).⁴⁵ A judge of the Superior Court determined that the failure to provide rank-specific locker rooms did not constitute an adverse employment action for purposes of either a gender discrimination claim or a retaliation claim, and that in any event the plaintiffs had failed to demonstrate a retaliatory motive on the part of the department. He concluded accordingly that the plaintiffs had failed to establish a prima facie case with respect to either claim, allowed the defendant's motion for summary judgment, denied the plaintiffs' cross motion for summary judgment, and ordered the entry of a declaratory judgment authorizing the defendant to go forward with the department's plan to eliminate altogether rank-specific locker facilities.

The plaintiffs' timely appeal brings the case here.⁶ We conclude that, on the evidence presented, a fact finder permissibly could find that the department subjected the plaintiffs to adverse employment action; and that the department took action against the male members of the Boston Police Superior Officers Federation (federation) in retaliation for their support of the individual plaintiffs' claims. Accordingly, summary judgment could not enter with respect to the gender discrimination and retaliation claims, and we vacate so much of the judgment as dismissed those claims.⁷

1. Background. The underlying facts are generally undisputed. Since at least 1980, the department has provided superior officers with locker rooms in the district stations that are separate from the locker rooms made available to patrol officers. Superior officers consider the separate locker facilities a tangible benefit of their rank, and both superior officers and patrol officers view the separation as useful so that disciplinary issues and other factors relating to rank do not affect the use of the respective spaces. Nevertheless, the collective bargaining agreement between the federation (the union of uniformed civil service superior officers) and the defendant never has contained express language that requires the provision of separate superior officer locker rooms.

In April, 2000, King was promoted to the rank of lieutenant and assigned to district station B-3 in Dorchester. That station had had a locker room for female superior officers, but when the last such officer left, the locker room was assigned to the drug control unit. King complained to her commanding officer, Captain Pervis Ryans, Jr., and asked that the space be reverted to its originally designated purpose. Ryans brought King's complaint to the department's bureau of administrative services, but was unable to obtain action and informed King that the female superior officer locker room would remain occupied by the drug control unit for the foreseeable future. King first had used the male superior officers' locker room, and then used the female patrol officers' locker room. Eventually she received access to a locked closet space within the female patrol officers' locker room as a quasi superior officer locker room. She quickly became dissatisfied with this compromise because she still was required to enter and traverse the female patrol officer locker room in order to get to her space. Jenkinson, who at that time was a patrol officer in B-3, also expressed her displeasure with King's use of the patrol officers' locker room, informing Ryans that she was "uncomfortable" having a superior officer in the area.

With no resolution forthcoming, King complained to the federation in January, 2001. Days later, then Sergeant Joseph Gillespie, the recently elected president of the federation, forwarded her grievance to the department's deputy superintendent, John Sullivan, Sullivan expressed sympathy with King's situation and presented the issue to the then superintendent-in-chief, James Hussey; Bill Good, director of the bureau of administrative services; and the executive rules committee, a group comprised of various department superintendents and bureau chiefs.

This group in turn requested that Mark Lynch, director of the department's facilities management division, conduct a review of all superior officer locker rooms department-wide. In a memorandum dated April 2, 2001, and addressed to Good, Lynch documented a gender disparity in the availability of superior officer locker rooms. In all eleven district stations, male superior officers received access to a superior officer locker room. In contrast, only five district stations contained a female superior officer locker room, and one of these stations, D-4, was newly constructed and not yet open. Lynch also acknowledged that the female superior officer locker room at B-3 (King's station) remained in use by the drug control unit, thereby reducing the number of district stations with locker rooms assigned to female superior officers to four.

A few days later, Good met with the department's commissioner, Paul Evans, and recommended the elimination of all male and female superior officer locker rooms. Evans agreed and ordered that implementation of this policy begin with the imminent opening of district station 4. The defendant admits that the department had not considered the establishment of what is essentially a rank-neutral locker room policy prior to this time. The defendant concedes as well that the recommendation was adopted without determining whether the drug control unit could be moved to accommodate King's request in B-3, whether physical space was available in district stations that lacked a female superior officer locker room so that renovations could be made to satisfy the need, or whether renovations of such a nature could be undertaken at a reasonable cost.

Later in April, 2001, the federation became aware of the department's intention to eliminate all rank-specific locker rooms. By a letter dated April 17, 2001, sent to Michael P. Reagan, director of the department's office of labor relations, Lieutenant Thomas W. Nolan (the federation's vice-president) objected to the plan made "apparently in response to the Federation's inquiry regarding the failure of the Department to maintain separate facilities for male and female superior officers at the B-3 station." He stated further that the federation viewed the elimination of rank-specific locker rooms as "a change in working conditions and the mandatory subject of collective bargaining." On April 30, 2001, Evans agreed, at the federation's request, to preserve the superior officer locker rooms in the new station D-4 until the issue was fully bargained between the parties.

On May 10, 2001, T. Martin Roach, Jr., a department labor counselor, wrote a letter to Gillespie, the federation's president, expressing the department's desire to move forward with the elimination of rank-specific locker rooms in early June, 2001. Roach offered the federation the opportunity to discuss the matter. The federation accepted the offer for discussion by means of a letter dated May 16, 2001, from Nolan. Contemporaneously, the department also initiated meetings on the issue of rank-neutral locker rooms with the Boston Police Patrolmen's Association, the patrol officers' union. On June 7, 2001, representatives of the department and the federation met to discuss the subject, but there was no resolution of differences. On June 19, 2001, Gillespie sent Sullivan a letter stating the federation's position that negotiations regarding the rank-neutral locker room policy remained ongoing and reiterating the federation's understanding that superior officer locker rooms would not be eliminated in D-4, pending the outcome of those discussions.

In early January of 2002, Jenkinson, after being promoted to the rank of sergeant in December of 2001, was transferred to district station E-13 in Jamaica Plain. While station E-13 had a female superior officer locker room, Jenkinson found the locker room was used as a second male superior officer locker room instead. She complained to Captain Robert Flaherty, her commanding officer, who informed her that use of the space would not be changed and that she would be given a locker in the female patrol officers' locker room. Realizing that the female superior officer locker room issue affected individuals and stations other than King and B-3, the federation forwarded a grievance on behalf of Jenkinson. The department responded only by discussing implementation of the rank-neutral locker room policy. Subsequently, Flaherty unilaterally removed the male superior officers from the female superior officer locker room, and assigned the space to female officers without regard to rank.

There being no progress to its satisfaction, the federation filed with the Massachusetts Commission Against Discrimination (MCAD) a complaint for gender discrimination against the defendant on behalf of King and Jenkinson. The department agreed to meet again to seek a resolution to the matter; however, Commissioner...