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D’Egidio v. Beth Israel Deaconess Medical Center, Inc.

Superior Court of Massachusetts, Suffolk

November 14, 2017

Michael D’EGIDIO


          Heidi E. Brieger, Associate Justice

         This action arises from the plaintiff, Michael D’Egidio’s (" D’Egidio"), employment at the defendant, Beth Israel Deaconess Medical Center’s (" BIDMC"), Human Subjects Protection Office (" HSPO"). D’Egidio claims that his termination one week before his sixty-fifth birthday constitutes unlawful age discrimination. Before the Court is BIDMC’s Motion for Summary Judgment. After a hearing and careful consideration of all the parties’ submissions, and for the reasons that follow. this motion is ALLOWED.[1]


         The court considers the summary judgment record in the light most favorable to D’Egidio, as the non-moving party.

         D’Egidio worked in the HSPO from 2008 to 2014. The HSPO has two functions, the auditing of clinical research protocols involving humans and the education of researchers and staff on the safe and ethical conduct of such research activities. With respect to its auditing function, the HSPO examines whether a clinical researcher and his/her team have complied with certain criteria, such as obtaining informed consent, using proper inclusion/exclusion criteria, following the scientific protocol, and storing data and paperwork appropriately. From 2009 to 2014, the HSPO employed two registered nurses as auditors to perform the HSPO’s auditing functions.

         On April 7, 2008, BIDMC hired D’Egidio as the Administratve Coordinator for the HSPO.[2] D’Egidio was fifty-nine years old. BIDMC advised and D’Egidio understood that he was an employee at will. His job initially required him to (1) enter data into a computer so that audits could be tracked; (2) assemble binders for study coordinators; (3) organize various PowerPoint presentations; (4) report certain financial information to the contracts office; and (5) perform other clerical duties, mostly supporting the HSPO’s Education Director. D’Egidio was the only employee in the HSPO with full-time administrative duties. D’Egidio’s initial duties did not include any substantive auditing responsibilities nor had he had any auditing experience in the past.

         Shortly after he started work, D’Egidio’s supervisor let him shadow her on three separate HSPO audits and D’Egidio claims he learned how to conduct audits. In August 2008, D’Egidio’s supervisor resigned and in October 2008, BIDMC named a new director of the HSPO, Dr. Kaarkuzhali Krishnamurthy (" Dr. Krishnamurthy"), who sought to focus the HSPO’s activities more heavily on education as opposed to auditing. On February 1, 2009, BIDMC reclassified D’Edigio’s job as Education Coordinator and he took on some increased duties in support of Dr. Krishnamurthy. D’Egidio’s new role did not include any auditing duties although he claims he had the capability to perform auditing duties and would have done so if he had been asked.

         In early 2013, due to its concerns about the potential for compliance issues, BIDMC determined that the HSPO should place greater emphasis on auditing and less emphasis on education. Dr. Krishnarnurthy did not agree and resigned from the HSPO Director role. Instead of replacing Dr. Krishnamurthy, BIDMC eliminated the HSPO Director role. BIDMC promoted Angela Lavoie (" Lavoie"), a nurse auditor in the HSPO, to manage the HSPO in March 2014.

         After Dr. Krishnamurthy left and BIDMC eliminated the Director position, D’Egidio had less work to do. D’Egidio offered to take on some of the clerical/educational work for the two nurse auditors because they were very busy performing audits. He did not offer to help the nurses with their auditing work because he figured if he helped them with their clerical/education work it would free up their time to do audits. He never offered to help them with their auditing work even though he suggested to BIDMC’s Vice President of Research Operations, Randy Mason (" Mason"), that HSPO should hire another auditor, potentially part-time.

         As part of the shift to auditing, BIDMC anticipated increased demands on Lavoie and its other nurse auditor. To address the need for additional auditing resources, BIDMC created a new position for a non-nurse auditor in March 2014. For this position, BIDMC sought an individual with a bachelor’s degree and three to five years of related work experience to " develop and carry out quality assurance measures for existing clinical research protocols and assist in coordinating educational programs for clinical researchers and staff." Further, the job duties included: (1) assisting with audits of clinical research protocols, providing real-time education to principal investigators and members of the research team while conducting audits, and tracking completion of corrective action requirements; (2) reporting to the CCI on a timely basis; (3) assisting in gathering data and educational evaluations; (4) attending Committee on Clinical Investigations meetings; and (5) contacting principal investigators to schedule audit reviews.

         On May 6, 2014, Mason told D’Egidio that BIDMC was eliminating D’Egidio’s position on May 9, 2014. This was one week before D’Egidio’s sixty-fifth birthday. D’Egidio never told Mason, nor anyone else at BIDMC, that he believed he could perform the open auditor position and he never applied for the position.[3] He also never told anyone that he had been " trained in audits" or that he had shadowed his supervisor in connection with audits she performed. D’Egidio states that, in his position, he performed all of the functions required of the newly created non-nurse auditor position, except for " auditing, " which had never been assigned to anyone. More specifically, he never performed an audit of a clinical research protocol or provided real-time education to principal investigators and members of a research team in connection with an audit of a clinical research protocol. He claims that he has tracked completion of corrective action requirements, but testified at his deposition that all he did was set up a spreadsheet that tracked the audit results with links to supporting documents. He states that he did not apply for the open position because he thought over time as the department was restructured he would be given more responsibility in the role in which he already served. He believes that Mason should have known that he could perform the auditing job because he has a high IQ, he is efficient, and he learns fast.

         Mason states that the decision to terminate D’Egidio was not based on his performance, but was because BIDMC no longer required a full-time administrative employee due to the restructuring of the HSPO and because of budget constraints. After his position was eliminated, D’Egidio’s former job duties were either automated or absorbed by other HSPO employees. D’Egidio claims that the new non-nurse auditor took over some of his responsibilities, but admits that he has no evidence of this except for his conversations with the nurse auditors. Further, he " guessed" that BIDMC was going to hire someone younger based on anecdotal information.


         Summary judgment shall be granted when all material facts have been established and the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c); Miller v. Mooney, 431 Mass. 57, 60 (2000). The moving party has the burden of affirmatively demonstrating the absence of a genuine issue of material fact on every relevant issue. Sullivan v. LibertyMut. Ins. Co., 444 Mass. 34, 39 (2005). Here, the defendant, as the moving party, may satisfy its burden by demonstrating that the plaintiff " has no reasonable expectation of proving an essential element of the case at trial." Id. (citation omitted). And although summary judgment is disfavored in employment discrimination cases of disparate treatment, if " the plaintiff is unable to offer admissible evidence of the defendant’s discriminatory intent, motive, or state of mind sufficient to carry the ...

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