MARY SULLIVAN vs. LIBERTY MUTUAL INSURANCE COMPANY.

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. [Note 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. [Note 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. [Note 3] In the months before implementation, Liberty first imposed a

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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, [Note 4] was charged with analyzing what Liberty referred to as "productivity" and "capacity" for all offices within the region. [Note 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. [Note 6] Three of the attorneys who were laid off (including

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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, [Note 7] and a different judge subsequently denied Sullivan's motion for reconsideration. Sullivan timely appealed from the summary

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judgment as well as from an order granting Liberty's emergency motion to strike portions of Sullivan's affidavit, [Note 8] and an earlier order denying her leave to proceed as "Jane Doe." [Note 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 treatment [Note 10] 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 nonmoving party, drawing all reasonable inferences in her favor. See

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Mass. R. Civ. P. 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 Douglas

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Corp. v. Green, 411 U.S. 792, 802-805 (1973) (McDonnell Douglas). [Note 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 (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. [Note 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 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

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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. [Note 13] 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

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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. SmithKline 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

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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

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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 the prima facie case and the illegal discrimination for which it establishes" a presumption, O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311-312 (1996), we agree with those courts that recognize that the "mere termination of a competent employee when an employer is making cutbacks due to economic necessity is insufficient to establish a prima facie case." LaGrant v. Gulf & Western Mfg. Co., 748 F.2d 1087, 1090 (6th Cir. 1984).

The task of formulating a standard to apply in all reduction in force cases is challenging, as the claims may arise in vastly different circumstances. In some reduction in force cases, the fact that an employer retained in the plaintiff's same position an employee outside the plaintiff's protected class may indeed be "sufficiently probative to allow a factfinder to believe that the employer intentionally discriminated against the plaintiff." Barnes v. GenCorp., Inc., supra. [Note 14] But in others the employer's retention in the plaintiff's same position of an employee who is outside the plaintiff's protected class, without more, would not necessarily permit a reasonable inference of discrimination. [Note 15] In one case, the plaintiff may be the only employee who is laid

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off. In another, several hundred individuals may be affected. Our formulation must encompass all such circumstances.

The formulation of the fourth element of the prima facie case in a reduction in force case therefore cannot be precise. But consistent with the purpose of the prima facie case, and joining the majority of other jurisdictions, we conclude that a plaintiff in a reduction in force case may satisfy the fourth element of her prima facie case by producing some evidence that her layoff occurred in circumstances that would raise a reasonable inference of unlawful discrimination. Cf. Knight v. Avon Prods, Inc., 438 Mass. 413, 425 (2003). See, e.g., Currier v. United Techs. Corp., 393 F.3d 246, 254 (1st Cir. 2004); Nichols v. Loral Vought Sys. Corp., supra; Maresco v. Evans Chemetics, 964 F.2d 106, 111 (2d Cir. 1992); Barnes v. GenCorp., Inc., supra.

We add these observations. First, we repeat that the plaintiff's initial burden of establishing a prima facie case is not intended to be onerous. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). See also Currier v. United Techs. Corp., supra at 254. It is meant to be a "small showing" that is "easily made." Che v. Massachusetts Bay Transp. Auth., 342 F.3d 31, 38 (1st Cir. 2003), quoting Kosereis v. Rhode Island, 331 F.3d 207, 213 (1st Cir. 2003). Second, in almost all such cases, as in this case, summary judgment follows discovery, during which the employer would have disclosed its reason for selecting a particular plaintiff for "reduction," i.e., discharge from the work force. As noted by the United States Court of Appeals for the Sixth Circuit, a plaintiff who "was truly singled out for discharge" because of membership in a protected class "should be able to develop enough evidence through the discovery process or otherwise to establish a prima facie case." Barnes v. GenCorp., Inc., supra at 1465-1466. It is not onerous to require a plaintiff who has had the benefit of discovery to produce some evidence that the decision to lay her off (rather than some other employee) occurred in circumstances that raise an inference of unlawful discrimination. In this case for example, Sullivan established through discovery that some of the attorneys retained by Liberty in its Boston office had

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been assigned a lower rating than she had in their performance evaluations. That a terminated plaintiff has been ranked or evaluated above a younger or male coworker working in the same position who is not laid off is precisely the kind of indirect evidence of discriminatory intent that discovery elicits, which will permit a plaintiff to establish a prima facie case. [Note 16]

5. Prima facie case of sex and age discrimination. We turn to consider Sullivan's prima facie showing of sex and age discrimination in light of these requirements. [Note 17], [Note 18] With regard to

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her sex discrimination claim, to establish her prima facie case, Sullivan has asserted that (1) Liberty "exhibited a bias against women based on hiring, pay, promotion, and firing"; [Note 19] (2) Liberty disproportionately terminated women on June 15,

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1999 [Note 20]; (3) following her layoff Latronico disproportionately reassigned Sullivan's cases to male attorneys; [Note 21] and (4) Liberty retained male attorneys rated lower than Sullivan. [Note 22] Weighing against Sullivan is the uncontested fact that Liberty retained six female attorneys in the Boston office, all of whom were rated higher than she was.

Some of the evidence on which Sullivan has relied is clearly inadmissible. See notes 8, 19, supra. We nevertheless conclude that Sullivan has established a prima facie case of sex discrimination. Specifically, there is undisputed, admissible evidence that Liberty retained in its Boston office male attorneys with the same job classification as Sullivan, who had been rated lower than she had in the last performance evaluation conducted before the reduction in force. That Liberty retained lower-rated, similarly situated male employees eliminates one of the "most obvious explanations for the discharge" -- her "lower proficiency." Barnes v. GenCorp., Inc., 896 F.2d 1457, 1466 (6th Cir.), cert. denied, 498 U.S. 878 (1990). This evidence alone, and certainly in combination with other admissible evidence, would permit a jury reasonably to conclude that Liberty's termination of Sullivan, "if otherwise unexplained, [is] more likely than not based on the consideration

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of impermissible factors." Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978).

Turning to Sullivan's age discrimination claim, Sullivan relies on the following evidence to establish her prima facie case: (1) five of the six discharged attorneys were over the age of forty, including all three attorneys from the Boston office [Note 23]; (2) what Sullivan terms "ageist remarks" attributed to Latronico concerning another attorney in the Boston office [Note 24]; (3) the average age of attorneys in the Boston office decreased as a result of the layoffs [Note 25]; (4) Latronico reassigned all of Sullivan's cases to younger attorneys [Note 26]; (5) Liberty retained "lower-rated" attorneys, who were younger than Sullivan [Note 27]; and (6) other

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evidence that, Sullivan asserts, is probative of Liberty's discriminatory animus against older attorneys. [Note 28] Weighing against her is the uncontested fact that Liberty retained three attorneys over forty years of age in the Boston office with the same job classification as Sullivan, one of whom, at fifty-eight years of age, was older than she was.

We conclude that Sullivan has established a prima facie case of age discrimination because the layoff occurred in circumstances that raise a reasonable inference of unlawful age discrimination. Liberty's retention of lower-rated, younger attorneys in its Boston office with the same job classification as Sullivan, particularly when combined with the fact that five of the six attorneys Liberty discharged were over forty years of age, would permit a reasonable jury to conclude that Liberty's termination of Sullivan, "if otherwise unexplained, [is] more likely than not based on the consideration of impermissible factors." Furnco Constr. Corp. v. Waters, supra. In particular, Liberty's retention of lower-rated, similarly situated employees who are substantially younger than Sullivan permits a rebuttable presumption of age discrimination by eliminating one of the most obvious explanations for the discharge -- her "lower proficiency." Barnes v. GenCorp., Inc., supra.

6. Employer's burden to rebut prima facie case. Sullivan having established a prima facie case of both sex and age discrimination, the burden shifts to Liberty in the second stage of the McDonnell Douglas framework. Liberty may satisfy its burden "by articulating 'a lawful reason or reasons for its employment decision [and] produc[ing] credible evidence to show that the reason or reasons advanced were the real reasons.' " Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 116 (2000), quoting Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 442 (1995).

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Liberty's burden at this stage is one of production and not persuasion; Liberty "need not prove that the reasons were nondiscriminatory." Abramian v. President & Fellows of Harvard College, supra at 117.

As to Sullivan's age discrimination claim, "[t]he question is why, given [Liberty's] need to reduce [its] workforce, [it] chose to discharge the older rather than the younger employee," Thornbrough v. Columbus & Greenville R.R., 760 F.2d 633, 645 (5th Cir. 1985), abrogated on other grounds by St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). As to Sullivan's sex discrimination claim, Liberty similarly must explain why it chose to discharge Sullivan, a woman, rather than one of its male attorneys in her same position. Although Liberty's burden at this stage is one of production only, Liberty "nevertheless retains an incentive to persuade the trier of fact that the employment decision was lawful. Thus, the defendant normally will attempt to prove the factual basis for its explanation." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 258 (1981). We conclude that Liberty has met its burden by explaining the circumstances that led to the reduction in force, and by producing evidence of nondiscriminatory reasons to support Sullivan's selection for layoff. In other words, Liberty proffered admissible evidence to explain that in selecting Sullivan as one of six attorneys to lay off, it had business reasons for doing so unrelated to her age and her sex.

As in all reductions in force, Liberty was forced to choose whom to terminate from among several presumably qualified attorneys. Although Liberty had evaluated its several attorneys over the preceding years, it was under no legal requirement to lay off the attorneys with the lowest performance ratings. While Liberty could (and did) take into account the performance evaluations of each attorney, Liberty could also take into consideration other business needs that a substantial reduction in its professional staff would surely occasion. It could consider the particular expertise of an attorney, or whether two candidates for layoff had overlapping expertise. It could in short determine which of the attorneys would best meet its ongoing business needs, provided it did not make the selection for impermissible reasons. The record establishes that Liberty undertook just such

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a review and reached a conclusion that Sullivan was less suited for the needs of the new environment for reasons related to neither her age nor her sex. We summarize that evidence.

Much revolved around Liberty's determination that Sullivan had failed to respond appropriately to new opportunities to offset declining business in the Boston office. Latronico explained that attorneys working in Liberty's field offices generally provided litigation representation to Liberty's clients. In some cases, however, Liberty retained outside counsel for that purpose, a decision that was, in each case, made jointly by Liberty's regional attorney and Liberty's claims department staff. Environmental litigation was handled differently. Liberty had established an environmental unit with its own claims staff who had "complete discretion" to refer cases to outside counsel. In fact, the staff generally referred more environmental cases to outside counsel than to Liberty's field offices. In other words, the attorneys employed in Liberty's field offices were competing directly with outside counsel for environmental work. As legal work in Liberty's Boston office declined, Latronico was hopeful that the quality of its services would encourage the environmental claims staff to increase their referrals to his office: environmental cases referred to the Boston office therefore had to be handled "in an appropriate and efficient manner."

For whatever reasons, Sullivan did not meet those expectations. By way of example, in one environmental case, Sullivan delayed for over six months a response to a plaintiff's motion for summary judgment despite repeated inquiries and demands from the environmental claims department. The situation was sufficiently perilous that counsel for the environmental unit, together with the adjuster for the case, met with Latronico to discuss their "concern" with Sullivan's performance. [Note 29] Latronico reassigned the case to another attorney.

The environmental unit's dissatisfaction with Sullivan's performance occurred at the very moment the Boston office's

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legal business was declining. [Note 30] By January, 1999, Liberty had imposed a hiring freeze in the field offices. As its financial circumstances deteriorated, by late 1998 or early 1999, Liberty had embarked on its "productivity and capacity" analysis of its workforce, including all of its legal staff. We have earlier summarized the details of that analysis. See note 5, supra. Here we note only that the assessment of individual attorneys by Latronico and others [Note 31] during that exercise included a wide range of factors that are typical for a reduction in force evaluation. [Note 32]

Liberty has also produced evidence explaining why it retained three male attorneys in the Boston office who had lower performance ratings than did Sullivan. One had expertise that Sullivan did not have. [Note 33] The second, also rated lower than Sullivan, was highly regarded by the claims department, in part

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because he provided excellent customer service. [Note 34] This was considered helpful for future business in the Boston office. Liberty retained a third male attorney in the Boston office rated lower than Sullivan, who was forty-four years of age at the time of the reduction in force. This attorney's most recent evaluation noted that his "affable, straightforward nature" helped him "get along well with internal and external clients."

After recommending that Sullivan be laid off, Latronico was required to explain his recommendation to Liberty's human resource department. See note 31, supra. We have reviewed Latronico's reasons given at that time, [Note 35] long before Latronico had any reason to anticipate that Sullivan would commence litigation against Liberty, in light of all of the evidence subsequently adduced during discovery. The evidence is consistent with the reasons for Sullivan's layoff first articulated by Latronico. We agree with the motion judge who concluded that Liberty articulated a credible nondiscriminatory reason for its choice to terminate Sullivan "by demonstrating that it was engaged in a legitimate reduction in force and chose Sullivan to be terminated on the basis of a history of sub-par performance evaluations combined with recent serious complaints from clients regarding her handling of cases."

7. Evidence of discrimination. Because Liberty has succeeded "in carrying its burden of production, the McDonnell Douglas framework -- with its presumptions and burdens -- is no longer relevant." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510 (1993). The presumption of discrimination disappears. The burden returns to Sullivan to establish that the basis of Liberty's

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decision was unlawful discrimination "by adducing evidence that the reasons given by [Liberty] for its actions were mere pretexts to hide such discrimination." Lewis v. Boston, 321 F.3d 207, 214 (1st Cir. 2003). "This may be accomplished by showing that the reasons advanced by [Liberty] for making the adverse decision are not true." Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 117 (2000). Once again we agree with the motion judge who concluded that Sullivan has not established with credible evidence that Liberty's proffered reasons for her layoff were merely a pretext for a true intent of sex discrimination. We also conclude that Sullivan has failed to make a sufficient showing with respect to her age discrimination claims.

Sullivan first argues that the disproportionate impact the reduction in force had on female and older attorneys raises inferences of discrimination. [Note 36] Sullivan points to evidence, noted above, that the percentage of female attorneys and the percentage of attorneys over the age of forty declined following the reduction in force, and that after her dismissal Latronico reassigned her cases disproportionately to younger, male attorneys. [Note 37] Although this evidence helped Sullivan establish her prima facie cases, it has limited probative value at this stage. The evidence fails to rebut Liberty's proffered reasons for laying off Sullivan and does not, by itself, create reasonable inferences of discriminatory animus and causation. See, e.g., Rummery v. Illinois Bell Tel. Co., 250 F.3d 553, 559 (7th Cir. 2001) (statistics that do not account for employer's legitimate nondiscriminatory explanations do not establish pretext); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1283 (9th Cir. 2000), cert. denied sub nom. Gentile v. Quaker Oats Co., 533 U.S. 950 (2001) (statistics that do not account for factors pertinent to selection of plaintiff for

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discharge do not alone establish pretext). Sullivan's evidence similarly fails to eliminate other explanations for the disproportionate statistics, such as random chance (given the small discrepancies and small sample size involved here) or the actual distribution of aptitudes or expertise among attorneys of differing ages and genders both before and after the reduction in force. See, e.g., Smith v. Xerox Corp., 196 F.3d 358, 371 (2d Cir. 1999) (statistics that do not account for other possible causes of disparity do not establish pretext); Fallis v. KerrMcGee Corp., 944 F.2d 743, 747 (10th Cir. 1991) (statistics must eliminate nondiscriminatory reasons for disparity).

Next, Sullivan attacks the process that Liberty used to select her for layoff. She argues that Liberty improperly relied on subjective and unreliable assessments, compared her to employees it should not have, and failed to compare her to employees it should have. [Note 38] Even were we to conclude that Sullivan is correct, our task is not to evaluate the soundness of Liberty's decision making, but to ensure it does not mask discriminatory animus. See Mesnick v. General Elec. Co., 950 F.2d 816, 825 (1st Cir. 1991), cert. denied, 504 U.S. 985 (1992) ("Courts may not sit as super personnel departments, assessing the merits -- or even the rationality -- of employers' nondiscriminatory business decisions"). Sullivan's criticisms of Liberty's selection process, which Liberty has explained in abundant detail, fail to reveal any hidden animus.

Last, Sullivan argues that Liberty's opinions concerning her handling of the environmental case and her human relations skills were incorrect. [Note 39] Again, even were we to conclude that Sullivan neither mishandled the environmental case nor was

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responsible for the difficulties that arose with her support staff, these facts do not establish that Liberty's stated reasons for terminating her were pretextual. There is ample, uncontroverted evidence that the negative impression Latronico, staff in the environmental unit, and others had formed of Sullivan's abilities was a primary reason she was selected for layoff. There is no evidence that would allow a fact finder reasonably to conclude that the environmental unit had not complained to Latronico about Sullivan's lack of substantive legal knowledge and responsiveness. Sullivan does not challenge whether Latronico truly believed that her mishandling of the environmental case jeopardized the Boston office's ability to retain environmental cases during a period of declining caseloads. She also fails to point to any evidence rebutting Liberty's nondiscriminatory explanations for retaining younger, male attorneys with her job classification who had received lower performance ratings than she had. Nor does she point to any evidence suggesting that any of the attorneys to whom she believes Liberty should have compared her had performance failings comparable to those Liberty believed she had. In summary, Sullivan's evidence does not permit a reasonable inference that Liberty selected her for layoff for any reason other than her own performance.

Sullivan's proof is insufficient, as a matter of law, to show that, when she was terminated, Liberty had a discriminatory intent, motive, or state of mind based on her age or sex and that any such animus was "a material and important ingredient in the discharge." Knight v. Avon Prods., Inc., 438 Mass. 413, 426- 427 (2003). See Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 127 (1997).

Judgment affirmed.