JOSEPH T. BAKER v. MASSACHUSETTS STATE POLICE DEPARTMENT & Others.

NOTICE: 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-112

JOSEPH T. BAKER

vs.

MASSACHUSETTS STATE POLICE DEPARTMENT & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2019, the plaintiff, Joseph T. Baker, resigned from the

Massachusetts State police department (State police) after

twenty-five years of service. He then filed this action in

Superior Court, claiming discrimination on the basis of religion

in violation of G. L. c. 151B, § 4 (1); retaliation in violation

of G. L. c. 151B, § 4 (4); conspiracy to interfere with civil

rights, in violation of 42 U.S.C. § 1985 (3); constructive

discharge; violation of Title VII of the Civil Rights Act, 42

U.S.C. § 2000e; and violation of 42 U.S.C. § 1981. A judge

dismissed all of Baker's claims pursuant to Mass. R. Civ. P.

1Thomas J. Majenski, Robert Favuzza, Richard Warmington,
David Debuccia, and John T. Mill.
12 (b) (6), 365 Mass. 754 (1974). Now proceeding pro se, Baker

appeals from the dismissal of his claims for retaliation and

constructive discharge. We reverse. The facts alleged by Baker

plausibly suggest an entitlement to relief on his claim for

retaliation. In addition, although constructive discharge is

not an independent cause of action under Massachusetts law, on

remand Baker may move to amend his complaint if he wishes to

clarify that he is asserting a claim for wrongful discharge

separate from his other listed claims.

Discussion. We review the sufficiency of Baker's complaint

de novo. See Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674,

676 (2011). "[W]e look beyond the conclusory allegations in the

complaint and focus on whether the factual allegations plausibly

suggest an entitlement to relief." Id., citing Iannacchino v.

Ford Motor Co., 451 Mass. 623, 635-636 (2008).

1. Baker's claim for retaliation. Although Baker does not

challenge the dismissal of his discrimination and civil rights

claims, a claim of retaliation is distinct from one for

discrimination and may succeed even if an underlying

discrimination claim fails. See Abramian v. President & Fellows

of Harvard College, 432 Mass. 107, 121-122 (2000). General Laws

c. 151B, § 4 (4), makes it unlawful for "any person, employer,

labor organization or employment agency to discharge, expel or

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otherwise discriminate against any person because he has opposed

any practices forbidden under this chapter or because he has

filed a complaint, testified or assisted in any proceeding under

[G. L. c. 151B, § 5]." To make out a prima facie case for

retaliation, a plaintiff must "show that he engaged in protected

conduct, that he suffered some adverse action, and that a causal

connection existed between the protected conduct and the adverse

action." Osborne-Trussell v. Children's Hosp. Corp., 488 Mass.

248, 260 (2021), quoting Mole v. University of Mass., 442 Mass.

582, 591-592 (2004).

The State police do not dispute at this stage of the

proceeding that Baker engaged in protected conduct by filing an

internal complaint alleging discrimination by his supervisor

Major Thomas Majenski. Instead, the State police contend that

Baker failed to plead an adverse employment action. An adverse

employment action is one that "constitute[s] a change in working

conditions that 'create[s] a material disadvantage in the

plaintiff's employment'" (citation omitted). Ritchie v.

Department of State Police, 60 Mass. App. Ct. 655, 665 (2004).

"Cases have employed the phrase 'adverse employment action' to

refer to the effects on working terms, conditions, or privileges

that are material . . . as opposed to those effects that are

trivial." King v. Boston, 71 Mass. App. Ct. 460, 468 (2008).

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The judge concluded that Baker did not suffer an adverse

employment action because "[t]he defendants did not demote him,

did not relocate him involuntarily, did not change his work

conditions at all." We disagree for two reasons.

First, accepting Baker's allegations as true and drawing

all reasonable inferences in his favor, see Curtis, 458 Mass. at

676, Baker has plausibly alleged that his submission of an

internal affairs complaint against Majenski resulted in material

changes to his working conditions, including his right to have

his complaint investigated and resolved in accordance with State

police policies. Baker alleges that even though he filed his

complaint pursuant to the State police's policy on personnel

investigations, to be investigated by the internal affairs

section, Lieutenant Colonel Richard Warmington diverted the

complaint to the harassment investigation unit, which conducts

investigations under a different policy. Baker further alleges

that after he learned that Warmington was involved in the

investigation, Baker asked that he be recused due to the fact

that Majenski had been Warmington's executive officer at Troop D

and Warmington recommended him to serve as its commander. Even

though other officers assured Baker in writing that Warmington

was recused from the investigation, Warmington signed the letter

informing Baker that the investigation was closed and that "all

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charges against Maj. Majenski were either not sustained, or

unfounded." In addition, the State police denied Baker a copy

of the investigative report, "in direct conflict with the

earlier written confirmation that he would be entitled to the

investigation upon completion." These alleged irregularities in

how the State police handled Baker's internal affairs complaint

plausibly suggest that he experienced a material disadvantage in

his working terms, conditions, or privileges as a result of his

protected conduct. See Ritchie, 60 Mass. App. Ct. at 665

(plaintiff who alleged misuse of employee observation report and

evaluation system following filing of internal harassment

complaint sufficiently alleged adverse employment action).

Second, Baker has plausibly alleged that he was

constructively discharged from his position at Troop D

headquarters as a result of his protected conduct. A

constructive discharge "occurs when the employer's conduct

effectively forces an employee to resign," GTE Prods. Corp. v.

Stewart, 421 Mass. 22, 33-34 (1995), quoting Turner v. Anheuser-

Busch, Inc., 7 Cal. 4th 1238, 1244-1245 (1994), and it can serve

as the basis for an adverse employment action for a retaliation

claim under G. L. c. 151B, § 4, see Green v. Harvard Vanguard

Med. Assocs., Inc., 79 Mass. App. Ct. 1, 14 (2011). To prove a

constructive discharge, "the trier of fact must be satisfied

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that the new working conditions would have been so difficult or

unpleasant that a reasonable person in the employee's shoes

would have felt compelled to resign" (citation omitted). GTE

Prods. Corp., 421 Mass. at 34. "The test is met if, based on an

objective assessment of the conditions under which the employee

has asserted he was expected to work, it could be found they

were so difficult as to be intolerable." Id. At the pleading

stage, Baker's allegations must only plausibly suggest an

entitlement to relief. Iannacchino, 451 Mass. at 636.

Here, Baker's allegations plausibly show a constructive

discharge. He alleges that, as his supervisor, Majenski

"repeatedly mocked, belittled, and spoke down to [Baker] in

front of superiors, contemporaries, subordinates, and civilian

employees." Majenski "ridiculed [Baker's] religion, performance

of his duties, his voice, and his ability to articulate his

position with both the spoken and written word, in front of

several Troop D officers and [t]roopers." Notwithstanding

Baker's "exemplary service record and outstanding fitness

reports, "Majenski denied him "coveted administrative

assignments as a station commander" in favor of officers "with

less time in service and grade," including some who had been

criminally charged for conduct related to the performance of

their duties. Finally, Baker alleges that after the State

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police dismissed his internal affairs complaint against Majenski

and informed Baker that Majenski would be returning to Troop D

headquarters to continue serving as his supervisor, Baker was

told that he had to either remain in his current position at

Troop D or accept a transfer to Troop H or Troop C, both of

which would require a commute of at least three hours a day.

Baker resigned "rather than continue to subject himself to the

hostile and offensive work environment or deprive his family of

his availability."

These allegations plausibly suggest that Baker was

subjected to such difficult and unpleasant conditions that "a

reasonable person in the employee's shoes would have felt

compelled to resign." GTE Prods. Corp., 421 Mass. at 34.

Although the judge concluded that Baker's decision to resign

"cannot be deemed forced or inescapable," such a factual

determination cannot be made at the pleading stage, particularly

where the judge did not consider all the factors that

contributed to the "hostile and offensive work environment" to

which Baker was allegedly subjected. Nor do we agree that the

State police's proposals to reassign Baker to Troop H or Troop C

foreclose a finding of an adverse employment action. According

to the complaint, both proposed transfers would have entailed a

far longer commute, exposed Baker to dangerous driving

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conditions, and deprived him of time with his family. "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." Yee v. Massachusetts State

Police, 481 Mass. 290, 297 (2019), quoting King, 71 Mass. App.

Ct. at 470. For example, "[a] lateral transfer from an evening

to a day shift may be an adverse employment action to one

employee, but be welcomed by another." Id. Where Baker

plausibly alleges that the choices he faced upon Majenski's

return to Troop D headquarters were all "totally unacceptable"

and, as a result, "a reasonable person in [Baker's] shoes would

have felt compelled to resign," it was improper to dismiss his

retaliation claim on the ground that he failed to plead an

adverse employment action.

2. Baker's claim for constructive discharge. In addition

to his other claims, Baker asserted constructive discharge as a

separate cause of action. In its brief, the State police

contend that Baker's claim for constructive discharge fails

because "there is no such independent cause of action under

Massachusetts law." See Kelleher v. Lowell Gen. Hosp., 98 Mass.

App. Ct. 49, 51 (2020). However, the State police did not raise

this issue in the Superior Court, and the judge did not address

it in her decision. Had the State police challenged Baker's

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failure to identify a legal claim in connection with his

allegations of constructive discharge, Baker could have

rectified that omission in an amended complaint. See Mass. R.

Civ. P. 15 (a), 365 Mass. 761 (1974).

As we explained in Kelleher, "[a]n employee does not have a

right not to be 'constructively' discharged." Kelleher, 98

Mass. App. Ct. at 51. Rather, constructive discharge is "a

doctrine used to prove an element of a wrongful discharge claim

-- that is, that the employee was in fact discharged, rather

than left voluntarily." Id. at 52. In other words, the

employee must have some right not to be discharged that arises

from the common law, a contract, public policy, or a statute.

Id. at 51-52. Whether, or on what basis, Baker had a right not

to be discharged was not addressed below and has not been

briefed by the parties.2

2 We note that in his brief to this court, Baker asserted
certain details not set forth in his complaint regarding
Majenski's alleged "condemnation" and "mockery" after Baker
investigated an accident in which a police cruiser operated by a
commissioned officer struck a pedestrian. In GTE Prods. Corp.,
a case cited by Baker both in the Superior Court and here, the
Supreme Judicial Court discussed constructive discharge in the
context of a common-law claim for wrongful discharge. Under
that cause of action, an at-will employee may sue a former
employer if he or she was discharged in violation of a clearly
defined public policy. GTE Prods. Corp., 421 Mass. at 26. See
Smith–Pfeffer v. Superintendent of the Walter E. Fernald State
Sch., 404 Mass. 145, 149-150 (1989) ("Redress is available for
employees who are terminated for asserting a legally guaranteed
right [e.g., filing workers' compensation claim], for doing what

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If Baker intends to assert a claim for wrongful discharge,

in the context of his constructive discharge, separate from his

claim for retaliation under G. L. c. 151B, § 4, or the other

claims listed in his complaint, he should move to file in the

Superior Court an amended complaint setting forth that claim and

the factual basis for it. See Iannacchino, 451 Mass. at 636 ("a

plaintiff's obligation to provide the 'grounds' of his

'entitle[ment] to relief' requires more than labels and

conclusions," and factual allegations in complaint "must be

enough to raise a right to relief above the speculative level"

[citation omitted]). We express no opinion on whether any claim

for wrongful discharge would be viable in the circumstances

here.

Conclusion. So much of the judgment as dismissed Baker's

the law terminated for asserting a legally guaranteed right
[e.g., filing workers' compensation claim], for doing what the
law requires [e.g., serving on a jury], or for refusing to do
that which the law forbids [e.g., committing perjury]").

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claims for retaliation and constructive discharge is reversed.

The remainder of the judgment is affirmed.

So ordered.

By the Court (Blake, C.J.,
Hodgens & Toone, JJ.3),

Clerk

Entered: May 2, 2025.

3 The panelists are listed in order of seniority.

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