Mary Sullivan vs. Liberty Mutual Insurance Company
Case Details
- Citation
- 444 Mass. 34
- Procedural Posture — the stage the case had reached
- summary judgment
- State
- Massachusetts
- Circuit
- 1st Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
The Massachusetts Supreme Judicial Court affirmed summary judgment for Liberty Mutual Insurance Company, holding that although the plaintiff established prima facie cases of sex and age discrimination based on her being retained at lower ratings than younger and male colleagues, Liberty articulated credible nondiscriminatory reasons for her termination (reduction in force based on performance history and client complaints) and the plaintiff failed to prove pretext.
Excerpt
Mary Sullivan vs. Liberty Mutual Insurance Company. Suffolk. December 7, 2004. April 15, 2005. Present: Marshall, C.J., Grbaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Anti-Discrimination Law, Employment, Sex, Age, Prima facie case. Employment, Discrimination. Discussion of the standard of review when an employer seeks to obtain summary judgment in an action alleging employment discrimination. [38-39] Discussion of the elements of a claim of employment discrimination. [39-40] This court concluded that in an action alleging discrimination in employment in a situation in which the plaintiff has been laid off or otherwise harmed during a reduction in force, the plaintiff may satisfy the fourth element of her prima facie case (i.e., that her employer sought to fill her position by hiring another individual with qualifications similar to hers) by producing some evidence that her layoff occurred in circumstances that would raise a reasonable inference of unlawful discrimination. [40-46] In a civil action alleging sex and age discrimination in employment, the plaintiff established a prima facie case of sex discrimination, where there was undisputed, admissible evidence that the employer retained male attorneys with the same job classification as the plaintiff, who had been rated lower than she had in the last performance evaluation conducted before a reduction in force [46-49]; likewise, the plaintiff established a prima facie case of age discrimination, where the employer retained lower-rated, younger attorneys with the same job classification as the plaintiff [49-50]; however, the employer articulated a credible nondiscriminatory reason for its choice to terminate the plaintiff by demonstrating that it was engaged in a legitimate reduction in force and chose to terminate the plaintiff on the basis of a history of sub-par performance evaluations combined with recent serious complaints from clients about her handling of work [50-54], and the plaintiff failed to establish with credible evidence that the employer’s proffered reasons for her layoff were merely a pretext for a true intent of sex or age discrimination [54-57]. Civil action commenced in the Superior Court Department on May 4, 2000. The case was heard by Patrick J. King, J., on a motion for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. William. Royal, Jr., for the plaintiff. Lisa J. Damon (Brigitte M. Dujfy with her) for the defendant. Martin J. Newhouse, Andrew R. Grainger, & Benjamin G. Robbins, for New England Legal Foundation & another, amici curiae, submitted a brief. Marshall, C.J. The plaintiff, Mary Sullivan, challenges a Superior Court judge’s order granting summary judgment to the defendant, Liberty Mutual Insurance Company (Liberty), on Sullivan’s sex and age discrimination in employment claims brought pursuant to the antidiscrimination statute, G. L. c. 151B. The case arose from Liberty’s implementation in 1999 of a reduction in force in which it permanently discharged eleven employees in its New England region legal department, including Sullivan. Sullivan appealed. We transferred the case here on our own motion to consider the elements for establishing a prima facie case of discrimination under G. L. c. 151B, when the challenged employment action arises in the context of a reduction in force. We affirm the order granting summary judgment, but for reasons somewhat different from those of the motion judge. 1. Background. We briefly summarize the basic facts in their light most favorable to Sullivan, the nonmoving party, reserving additional facts for later discussion. In 1986, Sullivan began working for Liberty as an attorney representing the company’s insureds, moving to its Boston office in 1988. In June, 1999, precipitated (according to Liberty) by a decline in its business and a recent merger, Liberty implemented a reduction in force. In the months before implementation, Liberty first imposed a hiring freeze and then requested its managerial staff to determine whether each of Liberty’s offices was appropriately staffed. Kenneth A. Latronico, Liberty’s general attorney for its New England region, was charged with analyzing what Liberty referred to as “productivity” and “capacity” for all offices within the region. After receiving information ffom each office, Latronico determined there was no overstaffing in the Connecticut, New Hampshire, or Canadian offices, but concluded there was overstaffing in the five offices in eastern Massachusetts (Andover, Bedford, Boston, Brockton, and Worcester). He recommended, among other actions, a ten per cent staff reduction in eastern Massachusetts and the eventual closure of the Bedford office by relocating its remaining attorneys to other offices. After further consultation with senior management, Latronico then solicited recommendations from each office as to which attorneys to lay off. Latronico himself made the layoff recommendations for the Boston office; he recommended the layoff of Steven Hope, David Hartigan, and Sullivan, in that order. On June 15, 1999, Liberty discharged Sullivan and five other attorneys employed in the New England region, including Hope and Hartigan. Three of the attorneys who were laid off (including Sullivan) worked in the Boston office, two were from the Bedford office, and one was from the Worcester office. Three of the six attorneys terminated were women. Five of the six were over forty years of age; the sixth was thirty-eight years old. At the time of her layoff, Sullivan was forty-nine years old. La-tronico transferred the cases on which Sullivan had been working to six other attorneys, five of whom were men, all of whom were substantially younger than Sullivan. During her twelve years with Liberty, Sullivan had received various performance evaluations, as had other attorneys employed by Liberty. While Sullivan’s reviews were not the highest when compared to other attorneys in the Boston office, her reviews were generally positive. On no occasion had she received an over-all evaluation falling below “meets expectations,” although beginning as early as 1992, Liberty had noted some concerns with Sullivan’s lack of responsiveness to clients, and, later, her “collegiality” and “human relations skills,” especially concerning her interactions with clerical staff. On December 15, 1999, Sullivan filed a charge of discrimination with the Massachusetts Commission Against Discrimination, alleging that she was terminated because of her sex and age in violation of G. L. c. 15IB, § 4. On May 4, 2000, Sullivan commenced this action in the Superior Court against Liberty. See G. L. c. 151B, § 5. Over the following twenty months, the parties engaged in discovery, which included twelve depositions and Liberty’s production of over 2,000 pages of documents. On December 20, 2001, Liberty moved for summary judgment on all of Sullivan’s claims, which Sullivan opposed. A judge in the Superior Court allowed Liberty’s motion, and a different judge subsequently denied Sullivan’s motion for reconsideration. Sullivan timely appealed from the summary judgment as well as from an order granting Liberty’s emergency motion to strike portions of Sullivan’s affidavit, and an earlier order denying her leave to proceed as “Jane Doe.” 2. Standard of review. In cases involving claims of employment discrimination, a defendant employer faces a heavy burden if it seeks to obtain summary judgment: summary judgment is disfavored in discrimination cases based on disparate treatment because the question of the employer’s state of mind (discriminatory motive) is “elusive and rarely is established by other than circumstantial evidence.” Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 439 (1995), citing Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 137 (1976). This requires “the jury to weigh the credibility of conflicting explanations” of the adverse decision. Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 440. In reviewing an order granting summary judgment in such cases, we of course apply our traditional test and consider the facts in their light most favorable to the nonmov-ing party, drawing all reasonable inferences in her favor. See Mass. R. Civ. R 56 (c), 365 Mass. 824 (1974); Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 438. We may also make “an independent compilation of the relevant facts to frame the ultimate legal question whether summary judgment is appropriate.” Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 123 n.1 (1997). While the standard of review is the same as in all other cases, Liberty, as the moving party, “has the burden of affirmatively demonstrating the absence of a genuine issue of material fact on every relevant issue, even if [Liberty] would not have the burden on an issue if the case were to go to trial.” Id. at 127. Liberty may satisfy its burden by demonstrating that Sullivan “has no reasonable expectation of proving an essential element of the case at trial.” Id. And although summary judgment is disfavored in employment discrimination cases of disparate treatment, we have upheld summary judgment in favor of an employer where “the plaintiff is unable to offer admissible evidence of the defendant’s discriminatory intent, motive, or state of mind sufficient to carry the plaintiff’s burdens and support a judgment in the plaintiff’s favor.” Id., citing Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 440, and cases cited. We turn now to consider the record in light of these standards, beginning with an overview of the legal requirements imposed on both Sullivan and Liberty in this reduction in force case. 3. Claims of discrimination. We have construed G. L. c. 151B as containing four elements an employee must prove to prevail on a claim of discrimination in employment: membership in a protected class, harm, discriminatory animus, and causation. See Lipchitz v. Raytheon Co., 434 Mass. 493, 502 (2001). In cases such as this, where the claim is one of discrimination because of sex and age, the first two elements are seldom disputed. Rather, the conflict arises as to the latter two elements. Direct evidence of those elements (discriminatory animus and causation) rarely exists, see Wynn & Wynn, P.C. v. Massachusetts Comm’n Against Discrimination, 431 Mass. 655, 665 (2000), and a plaintiff may therefore establish one or both by indirect or circumstantial evidence using the familiar three-stage, burden-shifting paradigm first set out in McDonnell Dou glas Corp. v. Green, 411 U.S. 792, 802-805 (1973) (McDonnell Douglas). The three-stage order of proof “does not circumvent the plaintiff’s burden to prove all the essential elements of a discrimination claim, but does permit the jury to infer discriminatory animus and causation from proof that an employer has advanced a false reason for the adverse employment decision, in the absence of direct evidence that the actual motivation was discrimination.” Knight v. Avon Prods., Inc., 438 Mass. 413, 422 (2003). See Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 116 (2000), citing McDonnell Douglas, supra at 802. As we shall explain later, Sullivan has not produced any direct evidence of either age or sex discrimination. See note 24, infra. We confine our discussion to considering whether she has adduced sufficient indirect or circumstantial evidence to survive summary judgment. 4. The prima facie case. Under the McDonnell Douglas formulation, Sullivan bears the initial burden of establishing by the preponderance of the evidence a prima facie case of discrimination. Her burden is not onerous. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). See also Currier v. United Techs. Corp., 393 F.3d 246, 254 (1st Cir. 2004). Sullivan must simply produce sufficient evidence that Liberty’s actions, “if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978). As the Supreme Court noted in Texas Dep’t of Community Affairs v. Burdine, supra at 253-254, the prima facie case “serves an important function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiff’s rejection.” For this reason, if she establishes a prima facie case, Sullivan is entitled to a “legally mandatory, rebuttable presumption” that Liberty unlawfully terminated her, and she will prevail on her claims if Liberty fails to satisfy its burden at the second stage of the framework. Id. at 254 n.7. Generally, a plaintiff who is terminated from her position establishes a prima facie case of discrimination by producing evidence that she is a member of a class protected by G. L. c. 151B; she performed her job at an acceptable level; she was terminated; and her employer sought to fill her position by hiring another individual with qualifications similar to hers. See Abramian v. President & Fellows of Harvard College, supra. Liberty does not dispute that Sullivan satisfies the first three elements of this formulation of the prima facie case on each of her discrimination claims. Indeed it is likely that in a reduction in force case every plaintiff claiming sex or age discrimination can easily satisfy the first three elements of the prima facie case. The first and third elements are straightforward. As for the second element, in a reduction of force case the discharge is not the result of the employer concluding that an individual is not performing well: presumably before layoffs, every plaintiff in such a case is performing “at an acceptable level” or she would have been discharged before a downsizing occurs. Rather, the dispute will almost always concern the fourth element, and therein lies the difficulty. As generally formulated, the fourth element is nonsensical in a reduction in force case: the plaintiff is not replaced, nor does her employer “seek to fill” the position, for the very purpose of a workforce reorganization is generally to reduce the number of employees. See Lewis v. Boston, 321 F.3d 207, 214 n.6 (1st Cir. 2003) (in typical reduction of force case fourth element is “unworkable because the plaintiff’s position no longer exists”). Yet it cannot be that every individual in the workforce who falls within some protected class (the overwhelming majority of employees) can establish a prima facie case of discrimination simply because she is laid off during a reduction in force. At the same time, because an employer seeks to reduce its workforce does not mean that it is free to make its employment decisions on impermissible grounds: “even during a legitimate reorganization or workforce reduction, an employer may not dismiss employees for unlawful discriminatory reasons.” Maresco v. Evans Chemetics, 964 F.2d 106, 111 (2d Cir. 1992), quoting Hagelthorn v. Kennecott Corp., 710 F.2d 76, 81 (2d Cir. 1983). This case presents our first opportunity to consider how the fourth element of the prima facie case must be varied so that a plaintiff who is laid off (or otherwise harmed) during a reduction in force may establish a prima facie case of unlawful discrimination. See Abramian v. President & Fellows of Harvard College, supra (elements of prima facie case “may vary depending on the specific facts of the case”). We begin by examining how other courts have resolved the issue. Some have concluded that the fourth element “should be ‘relaxed’ when the employee’s layoff occurred in the context of a reduction in force.” Marzano v. Computer Sciences Corp., 91 F.3d 497, 503 (3d Cir. 1996). These courts permit a plaintiff to satisfy that element merely by showing that “other unprotected workers were retained.” Id. at 506, quoting DiBiase v. Smith-Kline Beecham Corp., 48 F.3d 719, 723 n.2 (3d Cir.), cert. denied, 516 U.S. 916 (1995). Accord Coburn v. Pan Am. World Airways, Inc., 711 F.2d 339, 343 (D.C. Cir.), cert. denied, 464 U.S. 994 (1983); Baker v. National State Bank, 312 N.J. Super. 268, 289-290 (App. Div. 1998), aff’d, 161 N.J. 220 (1999). Under that formulation Sullivan would establish a prima facie case by showing, in her sex discrimination claim, that a man was retained during the reduction in force and showing, in her age discrimination claim, that an employee at least five years younger than she was retained. Cf. Knight v. Avon Prods., Inc., supra at 424-425 (age disparity of five years or more between discharged plaintiff and younger replacement satisfies fourth element in age discrimination case). We reject that formulation, as such evidence is insufficient to establish a “legally mandatory, rebuttable presumption” of unlawful discrimination. Texas Dep’t of Community Affairs v. Burdine, supra at 254 n.7. Other courts have advanced different formulations, each seeking to mesh more satisfactorily evidence establishing the prima facie case with entitlement by the plaintiff to the presumption of discrimination. The United States Court of Appeals for the First Circuit permits a plaintiff to satisfy the fourth element in an age discrimination case through a narrower, more specific showing that the employer retained unprotected or younger workers “in the same position” as the plaintiff (emphasis added). Currier v. United Techs. Corp., supra at 254. This is consistent with the majority view that permits a plaintiff to satisfy the fourth element by producing some evidence “from which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue,” Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996), quoting Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 812 (5th Cir. 1991), or some similar formulation. Cf., e.g., Currier v. United Techs. Corp., supra (evidence that employer “otherwise did not treat age neutrally” in terminating plaintiff); Fast v. Southern Union Co., 149 F.3d 885, 890 (8th Cir. 1998) (evidence that age was “a factor in the employer’s decision to terminate” plaintiff); Maresco v. Evans Chemetics, supra at 110-111 (evidence that plaintiff was discharged in circumstances “that gave rise to an inference of discrimination”); Barnes v. GenCorp., Inc., 896 F.2d 1457, 1465 (6th Cir.), cert. denied, 498 U.S. 878 (1990) (some evidence “tending to indicate” that employer “singled out the plaintiff for discharge for impermissible reasons”). As we shall explain, a formulation along these lines is more satisfactory. The purpose of the prima facie case is to identify those circumstances where the employer’s actions, “if left unexplained, are more likely than not based on unlawful discrimination.” Lewis v. Boston, supra at 216. Stated differently, in the typical case where the plaintiff is not hired or is fired, the existing formulation of the prima facie case “ ‘eliminates the most common nondiscriminatory reasons for the plaintiff’s rejection,’ which are lack of competence and lack of job availability, and thereby creates a presumption of discrimination.” Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 116 (2000), quoting Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441 (1995). In contrast, in a reduction in force case, “the most obvious explanations for the discharge of any one employee are lower proficiency and/or random chance.” Barnes v. GenCorp., Inc., supra at 1466. When these “most common” nondiscriminatory reasons for the plaintiff’s layoff have been eliminated as possible reasons for the employer’s actions, the presumption of discrimination is established, for “it is more likely than not the employer, who we generally assume acts only with some reason, based [its] decision on an impermissible consideration.” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978). Because there must be “at least a logical connection between each element of th
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