Sullivan v. Liberty Mut. Ins. Co.

Decision Date15 April 2005
Citation444 Mass. 34,825 N.E.2d 522
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

William Royal, Jr., for the plaintiff.

Lisa J. Damon, Boston (Brigitte M. Duffy with her) for the defendant.

Martin J. Newhouse, Andrew R. Grainger, & Benjamin G. Robbins, Boston, for New England Legal Foundation & another, amici curiae, submitted a brief.



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.1 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.2 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.3 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,4 was charged with analyzing what Liberty referred to as "productivity" and "capacity" for all offices within the region.5 After receiving information from 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.6 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. Latronico 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. 151B, § 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,7 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,8 and an earlier order denying her leave to proceed as "Jane Doe."9

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 treatment10 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, 646 N.E.2d 111 (1995), citing Wheelock College v. Massachusetts Comm'n Against Discrimination, 371 Mass. 130, 137, 355 N.E.2d 309 (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, 646 N.E.2d 111. 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 nonmoving party, drawing all reasonable inferences in her favor. See Mass. R. Civ. P. 56(c), 365 Mass. 824 (1974); Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 438, 646 N.E.2d 111. 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, 686 N.E.2d 1303 (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, 686 N.E.2d 1303.

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, 646 N.E.2d 111, 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, 751 N.E.2d 360 (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, 729 N.E.2d 1068 (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 Douglas Corp. v. Green, 411 U.S. 792, 802-805, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (McDonnell Douglas).11 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, 780 N.E.2d 1255 (2003). See Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 116, 731 N.E.2d 1075 (2000), citing McDonnell Douglas, supra at 802, 93 S.Ct. 1817. 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.12

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...

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