NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

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

 

4 Lieutenant Warren Yee speaks Chinese, and he testified 

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 openended"). 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. § 2000e2(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 
21

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.