Employment – Age discrimination

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Where a plaintiff was terminated one week before his 65th birthday, the defendant employer is entitled to summary judgment based on a lack of evidence that age was a determinative cause in his termination.

“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’). …

“On May 6, 2014, [Randy] 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. 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 except for his conversations with the nurse auditors. Further, he ‘guessed’ that BIDMC was going to hire someone younger based on anecdotal information. …

“… First, regardless of whether D’Egidio could have performed the responsibilities of the new position, D’Egidio has presented no evidence that BIDMC was aware of his alleged abilities. Instead, D’Egidio has admitted that he never offered to help the nurses with the auditing work, never told anyone that he believed he could perform auditing work or that he had been ‘trained in audits,’ and never applied for the open auditor position. His contention that he could have performed the responsibilities of the new position and that BIDMC should have asked him if he wanted the position, are not enough to raise an inference of unlawful age discrimination. Second, D’Egidio has not presented any evidence with respect to the age’ or salary of his alleged replacement. Further, besides the general and self-serving statement that he was ‘equally or exceedingly qualified as compared to the [new] auditor,’ D’Egidio has not provided this court with any specific argument as to how he was ‘equally or exceedingly qualified’ as compared to his alleged replacement. It is hard to imagine that the alleged replacement was less qualified than D’Egidio since he has admitted he did not have three to five years auditing experience and had not performed some of the job functions with respect to auditing. D’Egidio’s showing at the summary judgment stage is simply not sufficient to show a reasonable inference of unlawful discrimination. As D’Egidio has not presented any evidence that age was a determinative cause in his termination, the court need not go further in it analysis. …

“Even assuming, however, that D’Egidio made out a prima facie case of age discrimination, BIDMC has advanced legitimate, nondiscriminatory reasons for terminating D’Egidio: that it eliminated his position because it restructured the HSPO and that it no longer needed a full-time administrative employee and because of budget constraints. D’Egidio himself admitted that he had less work once the focus of the HSPO shifted to auditing in 2013. … D’Egidio’s attempts to prove this reason false and a ‘mere pretext’ are unpersuasive. A court’s task is not to evaluate the soundness of an employer’s decision making, but to ensure it does not mask discriminatory animus. … D’Egidio has failed to reveal any hidden animus here.”

D’Egidio v. Beth Israel Deaconess Medical Center, Inc. (Lawyers Weekly No. 12-137-17) (9 pages) (Brieger, J.) (Suffolk Superior Court) (Civil Action No. 2016-1260-F) (Nov. 13, 2017).

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