You may have a case for a jury. In July 2024, the Appeals Court held that a female state trooper who was disciplined after a workplace incident could take her gender discrimination claim to trial, because she offered evidence that male coworkers accused of comparable misconduct were investigated and disciplined less harshly. This is a published Appeals Court decision and binding statewide. The court upheld judgment for the employer on her harassment and retaliation claims.
What happened
The worker and a male coworker were defensive tactics instructors at the State police academy. In 2016, while looking for training materials on a personal hard drive the coworker had connected to a work computer, she found sexually explicit files and filed a written complaint. After an investigation, the coworker was permanently transferred out of the academy. Three days after learning of that transfer, he filed a complaint about an incident thirteen months earlier, when the worker fired a taser loaded with an altered training cartridge at him. The employer sustained that charge and transferred her out of the academy, and she later received a letter of reprimand. A second male instructor admitted he had altered the training cartridges, but he was never investigated or charged with misconduct.
What the court decided
In Downey v. Johnson, 104 Mass. App. Ct. 361 (2024), the Appeals Court vacated summary judgment on the worker’s disparate treatment claims under G.L. c. 151B, § 4, and Title VII, 42 U.S.C. § 2000e-2, and otherwise affirmed.
Disparate treatment. Without direct evidence of bias, a worker can use a three-stage framework: a prima facie case, the employer’s stated reason, and evidence that the reason is a pretext. Bulwer v. Mount Auburn Hosp., 473 Mass. 672 (2016). One way to make the prima facie case is to show you were treated differently from a coworker outside your protected class who was similarly situated. That coworker does not have to be identical, only similar in all relevant respects. Trustees of Health & Hosps. of Boston, Inc. v. Massachusetts Comm’n Against Discrimination, 449 Mass. 675 (2007).
The court held a jury could find both comparators qualified. The worker and the first coworker held the same rank and assignment, had clean records, and were accused of offenses of comparable seriousness. The evidence of different treatment included these points:
- The employer interviewed every witness to the complaint against her, but limited its inquiry into his conduct to two interviews and never examined the hard drive.
- It did not check records that could show whether he was on duty during part of the conduct he was accused of.
- It gave her a negative supervisory report the day after she reported a rumor about her to top commanders, and a jury could find it never meaningfully investigated that report, even though its rules required complaints to be investigated.
- When the coworker described her “mood swings, emotional outbursts,” it pulled student surveys to back him up instead of asking whether his account reflected sex stereotyping.
- The second male instructor admitted tampering with equipment but faced no charge.
The same evidence was enough to let a jury find that the employer’s reasons were a pretext. The disparate treatment claims should have gone to a jury.
Harassment. Finding explicit files on one occasion, files the coworker did not intend her to see, was not severe and pervasive enough to create a hostile work environment. The employer also acted promptly by transferring the coworker, and flaws in its investigation did not create liability when its response stopped the problem.
Retaliation. Even if the coworker had a retaliatory motive, the employer investigated independently, and the worker admitted firing the cartridge. Nothing showed the employer was manipulated. A retaliation claim against the coworker personally was waived because it was not adequately argued on appeal.
What this means for you
If you were disciplined, ask how your employer treated people outside your protected class who were accused of misconduct of similar weight. Their offenses do not have to match yours. What matters is whether a fair observer would see the situations as roughly equivalent.
How an employer investigates can matter as much as the final penalty. A thorough investigation of you and a quick one of a male coworker, or a departure from the employer’s own rules, can be evidence of discrimination.
The decision also shows the limits. A single upsetting event is rarely enough for a harassment claim, and an employer that acts quickly to fix the problem is usually not liable for a coworker’s conduct. Retaliation claims are hard to win when you admit the conduct the employer disciplined.
What to do now
- Write down every step of your discipline: dates, charges, who investigated and who decided.
- List coworkers outside your protected class accused of comparable conduct, and what happened to them.
- Keep copies of your employer’s rules on investigations and discipline, and note where they were not followed.
- File with the MCAD within 300 days of the act you are challenging, as G.L. c. 151B, § 5 requires.
- Talk to an employment lawyer before you sign anything about your discipline.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Deadlines for discrimination and employment claims can be short.
