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 Juidicial Court for direct appellate review and arguments were heard by the SJC on December 6, 2004. At the argument, it became clear why the SJC had taken the case. In their questioning, the justices focused on the fact 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 they think the Court should adopt to deal with the RIF context.
At Liberty’s request and because whatever standard the SJC adopts will affect employers and employees throughout Massachusetts, NELF decided to file an amicus curiae brief on this question. In its brief, NELF urged the SJC to adopt a standard of proof in such cases that was logically related to the particular circumstances of a RIF, which by definition occurs because of business necessity and might well result in a lay off of the meber of a protected class for justifiable business reasons. NELF argued that, due to the nature of a RIF, it should not be sufficient for a plaintiff to show that other individuals, not in the protected class, remained employed. Rather, NELF supported Liberty’s position, as already presented to the Court in its supplemental filing, that the Court should adopt a standard of proof like the one adopted by the Fifth, Sixth, Eighth, Ninth, Tenth, and Eleventh Federal Circuits. This standard requires that, where the plaintiff’s termination is part of a RIF, the plaintiff has to show as the fourth element of the prima facie case, 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 (6th Cir. 1990).
In its decision issued on April 15, 2005, the SJC agreed with NELF and Liberty. Joining with the majority of other jurisdictions, the SJC held that, in a RIF case, the plaintiff must show, as the fourth element of the prima facie case, that “her layoff occurred in circumstances that would raise a reasonable inference of unlawful discrimination.”