As some employers look to downsize in light of current economic conditions, recent appellate decisions stress the importance of relying on legitimate criteria and thoughtful decision-making when selecting employees for layoff. In Romero v. UHS of Westwood Pembroke, Inc., the Appeals Court affirmed a trial court’s summary judgment ruling in favor of the employer of a pregnant employee who claimed her selection as part of a reduction in force (RIF) was discriminatory. The Court found that the employer proffered sufficient evidence to show that the layoff was necessitated by financial losses, and the employee failed to show that the reasons for selecting her were untrue.  

Melissa Romero was formerly the director of a partial hospitalization program of UHS of Westwood Pembroke (Westwood). After Romero became pregnant, Westwood instructed her to report to a new supervisor pursuant to an administrative reorganization. Westwood later laid off Romero as part of a RIF. Romero claimed that both the reorganization and her subsequent termination were unlawful responses to her notifying Westwood of her pregnancy. The Appeals Court evaluated the four elements she needed to establish to bring a claim under Chapter 151B: membership in a protected class, harm, discriminatory animus, and causation. The Court found that Romero was clearly a member of a protected class, and established the element of harm as a result of her termination, but not as a result of the structural reorganization. According to the Court, Westwood met its burden by “amply . . . articulating nondiscriminatory reasons for the layoff” and presented “credible evidence that its reasons were the real reasons for laying off the plaintiff.”  

Specifically, the Appeals Court analyzed whether the plaintiff had come forward with “sufficient credible evidence” that Westwood’s reasons for her layoff were “merely a pretext” for pregnancy discrimination. The plaintiff attempted to rebut Westwood’s reasons by arguing that pretext could be inferred from several facts: (1) the male director of her department was not terminated; (2) the non-pregnant female director of the Lowell branch of Westwood was not terminated; and (3) unlike four non-pregnant female employees who were terminated, the plaintiff was not offered a comparable position at Westwood after her termination. The Appeals Court ruled that none of these facts rebutted Westwood’s proffered reasons for laying off Romero, and did not give rise to an inference of discrimination because none of the nonterminated employees was similarly situated to her, and there were no available suitable positions for Romero at Westwood.  

This case reinforces a plaintiff’s burden to identify similarly situated employees when attempting to establish that his or her employer treated other employees more favorably, including in connection with a RIF. Where an employer has proffered a legitimate reason for selecting an employee in connection with a layoff, the employee must present strong evidence that the reasons advanced for the selection are false and cannot simply rely on the fact that others outside his or her protected class were not let go.