MEMORANDUM OF DECISION AND ORDER ON THE DEFENDANTâS
MOTION FOR SUMMARY JUDGMENT
E. Brieger, Associate Justice
action arises from the plaintiff, Michael DâEgidioâs ("
DâEgidio"), employment at the defendant, Beth Israel
Deaconess Medical Centerâs (" BIDMC"), Human
Subjects Protection Office (" HSPO"). DâEgidio
claims that his termination one week before his sixty-fifth
birthday constitutes unlawful age discrimination. Before the
Court is BIDMCâs Motion for Summary Judgment. After a hearing
and careful consideration of all the partiesâ submissions,
and for the reasons that follow. this motion is
court considers the summary judgment record in the light most
favorable to DâEgidio, as the non-moving party.
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 HSPOâs auditing
April 7, 2008, BIDMC hired DâEgidio as the Administratve
Coordinator for the HSPO. DâEgidio was fifty-nine years old.
BIDMC advised and DâEgidio 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 HSPOâs Education
Director. DâEgidio was the only employee in the HSPO with
full-time administrative duties. DâEgidioâs initial duties
did not include any substantive auditing responsibilities nor
had he had any auditing experience in the past.
after he started work, DâEgidioâs supervisor let him shadow
her on three separate HSPO audits and DâEgidio claims he
learned how to conduct audits. In August 2008, DâEgidioâs
supervisor resigned and in October 2008, BIDMC named a new
director of the HSPO, Dr. Kaarkuzhali Krishnamurthy ("
Dr. Krishnamurthy"), who sought to focus the HSPOâs
activities more heavily on education as opposed to auditing.
On February 1, 2009, BIDMC reclassified DâEdigioâs job as
Education Coordinator and he took on some increased duties in
support of Dr. Krishnamurthy. DâEgidioâs 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.
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.
Dr. Krishnamurthy left and BIDMC eliminated the Director
position, DâEgidio had less work to do. DâEgidio 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 BIDMCâs Vice President of
Research Operations, Randy Mason (" Mason"), that
HSPO should hire another auditor, potentially part-time.
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 bachelorâs 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.
6, 2014, Mason told DâEgidio that BIDMC was eliminating
DâEgidioâs position on May 9, 2014. This was one week before
DâEgidioâs sixty-fifth birthday. DâEgidio 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. 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.
DâEgidio 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
states that the decision to terminate DâEgidio 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, DâEgidioâs former job duties were
either automated or absorbed by other HSPO employees.
DâEgidio 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.
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 defendantâs discriminatory intent,
motive, or state of mind sufficient to carry the ...