Sartre v. Commonwealth Emp't Relations Bd.

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MARY SARTRE v. COMMONWEALTH EMPLOYMENT RELATIONS BOARD.

No. 23-P-1509

Appeals Court of Massachusetts

November 20, 2024

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Mary Sartre,^[1] appeals from a decision of the Commonwealth Employment Relations Board (board) affirming the dismissal of a charge of prohibited practice filed pursuant to G. L. c. 150E against the Department of Revenue (DOR). We affirm.

Background.

Sartre was employed as a meals tax auditor with the southern region of the DOR's Trustee Tax Bureau in Fall River and was a member of the National Association of Government Employees bargaining unit (union). On November 16 and 17, 2016 Sartre was assigned to attend a two-day training seminar in Chelsea. Within a few days of the seminar, Sartre requested five and one-half hours of travel time from her residence in Fall River to Chelsea for the seminar, but the DOR denied the request and allowed her only four hours of travel time. On November 22, 2016, the DOR director, who was also Sartre's supervisor, sent Sartre a formal written warning alleging that she was late for the training on the first day and left ninety minutes early on the second day. Sartre contacted the union about the denial of her full travel time request. The union negotiated with the DOR and they agreed that Sartre could take vacation time to make up the difference in travel time between what she was paid and what she sought. Neither Sartre nor the union filed a grievance over the warning or the travel time issue.

A year later, on October 27, 2017, Sartre submitted an email rebuttal to the 2016 written warning. She addressed the email to her director at the DOR. Sartre's email contained numerous disparaging comments about her director and alleged that there had been clear violations of the DOR's management code of conduct. As a result of the email, the DOR became concerned about Sartre's "health and wellbeing" and placed her on paid administrative leave pending a "fitness for duty certification" by her health care provider and a second certification by an independent medical examiner (IME).

Based on the IME report, which concluded that Sartre had an "inability to deal tactfully with others . . . based on her language and tone towards her director and towards other individuals within the department," the DOR decided to transfer Sartre so she could work under a different director. The DOR suggested that she relocate to an office in Chelsea, which was the closest region to the southern region.^[2] Ultimately, Sartre accepted the relocation and reported to Chelsea on April 3, 2018. Three days later, Sartre filed a grievance alleging that her transfer to Chelsea violated § 20.1 of the collective bargaining agreement (CBA) and was made in retaliation of her hostile work environment complaint. In September 2018, the union filed a prohibited practice charge with the Department of Labor Relations (DLR). The union was allowed to amend the charges and specifically alleged that the DOR violated the law by (1) retaliating against Sartre because of her union activities, (2) bargaining in bad faith over Sartre's transfer, and (3) repudiating Article 20 of the CBA.

The DLR's investigator dismissed the charges in their entirety after reviewing the evidence and arguments presented. The board affirmed the investigator's decision on May 16, 2019. On June 11, 2019, Sartre filed a notice of appeal of the board's decision.

Discussion.^[3]

The board has the authority to dismiss a charge of prohibited practice if it finds no probable cause to believe that a violation of the law has occurred. See G. L. c. 150E, § 11. "[A] final administrative agency decision will be set aside if, among other grounds, it is '[u]nsupported by substantial evidence'. . . or '[a]rbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law.'" Commissioner of Admin. & Fin. v. Commonwealth Employment Relations Bd., 477 Mass. 92, 95 (2017), quoting G. L. c. 30A, § 14. "[W]e 'give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.'" Brookline v. Alston, 487 Mass. 278, 299 (2021), quoting G. L. c. 30A, § 14 (7) .

A public employer violates G. L. c. 150E, § 10 (a.) (1), when it retaliates or discriminates against an employee for engaging in activity protected by G. L. c. 150E, § 2. See School Comm. of Boston v. Labor Relations Comm'n, 40 Mass.App.Ct. 327, 329 (1996). The union must show: (1) the employee was engaged in concerted activity protected by G. L. c. 150E, § 2; (2) the employer knew of the concerted, protected activity; (3) the employer took adverse action against the employee; and (4) the employer's action was motivated by a desire to penalize or discourage the protected activity. See School Comm. of Boston, supra.

Here the board's investigator found

"[w]hile [Sartre] engaged in union activities of which the Employer was aware, and the transfer constitutes an adverse action, I do not find that the transfer was motivated to penalize her for her union activities. There is no evidence that the Employer was upset with [Sartre's] union activities, which had occurred

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