Sullivan v. Liberty Mutual Insurance Company (Massachusetts Supreme Judicial Court)

Mary Sullivan, an attorney, was employed in Liberty Mutual Insurance Company’s (“Liberty”) Boston Field Office until she was permanently laid off on June 15, 1999, as part of a reduction in force (“RIF”) implemented by Liberty’s Legal Department. Sullivan sued Liberty in the Massachusetts Superior Court alleging age and gender discrimination. On March 5, 2003, the Superior Court granted Liberty’s motion for summary judgment and dismissed Sullivan’s complaint. Sullivan’s appeal to the Appeals Court was taken sua sponte by the Supreme Judicial Court for direct appellate review and arguments were heard by the SJC on December 6, 2004. At the argument, the justices noted that Massachusetts has not adopted a clear standard for the establishment of a prima facie case of discrimination in the context of a discharge caused by a RIF. At the close of the argument, the SJC asked the parties to submit supplementary memoranda of law setting forth what standard the Court should adopt to deal with the RIF context. NELF learned of the SJC’s request for further briefing on this question from Liberty and, because whatever standard the SJC adopts will affect employers and employees throughout Massachusetts, NELF submitted an amicus brief on this question. In its brief, NELF urged the Court to adopt a standard of proof in such cases that defers to an employer’s good faith business judgment. Specifically, NELF argued that the Court should adopt the standard of proof in RIF cases already adopted by the Fifth, Sixth, Eighth, Ninth, Tenth, and Eleventh Circuits, which, where a termination is part of a RIF, require a plaintiff to show, not simply that others who are not in the plaintiff’s protected class remained employed, but some “direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons.” Barnes v. Diversitech GenCorp, Inc., 896 F.2d 1457, 1465 (6^th Cir. 1990). The Supreme Judicial Court has not yet issued a decision on this question.