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Silver v. North Shore University Hospital

May 21, 2007


The opinion of the court was delivered by: Chin, D.J.


In this employment discrimination case, plaintiff Dr. Jack Silver, a research assistant, alleges that his former employers, defendants North Shore-Long Island Jewish Health System (the "Health System"), North Shore University Hospital (the "Hospital"), and the Feinstein Institute for Medical Research (the "Institute"). discriminated against him because of age, in violation of federal and state law. He also alleges that defendants retaliated against him by discharging him after learning that he filed an age discrimination claim with the Equal Employment Opportunity Commission (the "EEOC").

Defendants move for summary judgment, contending that they fired Silver for a legitimate business reason -- he was unable to obtain funding to support his research. In opposition to the motion, however, Silver has presented direct evidence that defendants discriminated against him because of his age, including deposition testimony from his supervisor that age was a factor in defendants' decision to fire him. Silver has also submitted a recording of a conversation with his supervisor, wherein the supervisor stated: "[L]et's face it, we're both almost 60 years old, right? . . . People are not going to lay out money for people like us any more . . . on the basis of promise. . . . [T]hat's the world's decision, I'll be frank with you." Accordingly, and for the reasons that follow, the motion is denied.


A. Facts

Construed in the light most favorable to Silver, the nonmoving party, the facts are as follows.

1. Silver's Employment

Sometime prior to 1989, Silver, then approximately forty-three years old, was recruited to join the Health System and Hospital by Dr. Nicholas Chiorazzi (also then approximately forty-three years old) and Hospital chairman Larry Sherr. (Scherr Aff. ¶¶ 5-6; Silver Dep. 13:16-25). Silver was employed at the Hospital starting in or about January 1989, initially as chief of the division of molecular medicine in the Department of Medicine. ((Scherr Aff. ¶¶ 7-8; Silver Aff. ¶ 2; Silver Dep. 21:11-15). In August 2000, at the time of its creation as an entity separate from the Hospital (but still part of the Health System), the Institute (at the time the North Shore-Long Island Jewish Research Institute, later the Feinstein Institute for Medical Research) offered and Silver accepted a position as a Senior Investigator in the Scientific track. (Silver Dep. 20:8-21:5; Chiorazzi Dep. 8:8-9:4).

On February 28, 2005 Silver was informed by Chiorazzi and Robin Wittenstein, Chief Operating Office of the Institute, that he would be discharged from the Institute effective March 2, 2005. (Chiorazzi Aff. ¶¶ 20-21; Wittenstein Aff. ¶ 7). Silver was fifty-nine years old at the time. (Silver Dep. 98:25-99:13).

2. Structure of the Institute

The Institute has three ranks of investigator: The lowest rank is Assistant Investigator, followed by Associate Investigator, and finally Senior Investigator (sometimes called simply "Investigator"). (Chiorazzi Aff. ¶ 13; Chiorazzi Dep. 30:6-16). In addition to the three ranks, the Institute has three tracks for investigators: Scientific, Technical, and Clinical. (Chiorazzi Aff. ¶ 13; Chiorazzi Dep. 22:17-23:7). Investigators on the Technical track provide services to the investigators on the Scientific track, and financial responsibility for a Technical track investigator is with the Scientific track investigator he or she assists. (Chiorazzi Aff. ¶ 13; Chiorazzi Dep. 22:17-23:2). Investigators on the Clinical track are clinicians involved in clinical or laboratory research, and financial responsibility for these employees rests exclusively with that physician and his or her clinical department. (Chiorazzi Aff. ¶ 13; Chiorazzi Dep. 33:25-34:7).

Only investigators on the Scientific track must obtain their own sources of funding. (Silver Dep. 23:8-15; Chiorazzi Aff. ¶ 13; Chiorazzi Dep. 32:25-33:18). Other duties of Scientific track investigators include conducting research, providing guidance to junior associates and helping them to obtain funding, and being scientifically productive. (Silver Dep. 25:22-26:4). Senior and Associate Investigators in the Scientific track may head their own laboratories ("Lab Heads"). (Chiorazzi Aff. ¶ 13).

3. Silver's Funding

When Silver interviewed with Sherr for the position at the Hospital, Sherr informed him that he would have to generate his own funding through grants at all times. (Silver Dep. 14:19-23, 15:15-19). Sherr stated that if Silver ever lost all his funding the Hospital System would grant him two years to look for another position. (Id. at 15:15-16:13).

For many years Silver received funding from the National Institutes of Health (the "NIH"), but last received funding from the NIH in 1999. (Id. at 91:3-11; Def.'s Notice of Mot. Ex. K). In 2003, Silver reapplied for a previously submitted $200,000 NIH grant, but did not obtain any funding from the NIH that year. (Silver Dep. 34:22-35:10, 124:13-16). In 2004, Silver again reapplied for that same grant, resubmitting a grant application that had been denied two times previously. (Id. at 89:6-18, 123:22-25, 124:13-16). After his discharge Silver learned that this grant was not funded by the NIH. (Id. at 89:19-24).

In 2004 Silver applied for a $36,000 grant from the American College of Gastroenterology. (Id. at 90:2-4). After his dismissal, Silver learned that this grant had not been funded. (Id. at 90:5-9).

Starting in 2000 or 2001 until 2004, Silver applied for and received annual grants from the Litwin Foundation. (Id. at 41:3-23, 42:5-11). The Litwin Grant was for $150,000, to be matched by $100,000 from the Hospital. (Id. at 41:12-17). The Litwin Foundation stopped funding Silver in 2004, following a "progress report" meeting wherein Silver stated that he was not collaborating and would not collaborate with other researchers, and that he was a "loner." (Id. at 43:25-55:16; Def.'s Notice of Mot. Ex. N ("Letter from the Litwin Foundation")).

In 2002, Silver's lab had a $47,692.28 deficit. (Silver Dep. 94:13-95:2). In 2003, his lab had a $119,188.36 deficit. (Id. at 95:4-10). In 2004, Silver's lab appears to have had a deficit of $158,124.82. (Id. at 95:20-96:25).

4. Silver's Employment Evaluations

In March 2003, Silver received his employment evaluation for the preceding twelve months. (Id. at 28:12-29:11). Silver was rated a two out of five for his efforts to "[w]rite[] proposals to various organizations for funding of research." (Def.'s Notice of Mot. Ex. L ("2003 Silver Evaluation")). At his deposition, Silver stated that this rating "meant . . . that Dr. Chiorazzi wasn't aware of all the grant applications [he] had submitted." (Silver Dep. 30:15-24). Although Silver felt the rating was "inaccurate," he did not inform Chiorazzi that he had submitted additional applications that Chiorazzi was unaware of, because Silver "didn't feel it would serve any purpose," and because he "agreed [that he] needed more funding." (Id. at 31:12-25). The 2003 evaluation also stated that Silver's productivity in terms of publications was moderate and needed improvement, an assessment with which Silver agreed. (2003 Silver Evaluation; Silver Dep. 40:17-20).

In November 2004, Silver received another employment evaluation. (Silver Dep. 65:22-25; Def.'s Notice of Mot. Ex. P ("2004 Silver Evaluation")). Regarding Silver's level of funding, Chiorazzi wrote as follows: "Needs to continue to pursue peer review research support from the NIH and other foundations and agencies. Cannot rely solely on contribution funds to support research program." (2004 Silver Evaluation). Silver agreed "a hundred percent" with Chiorazzi's comments regarding his need for funding. (Silver Dep. 71:22-72:3). On or about November 23, 2004, Silver tape-recorded a conversation between himself and Chiorazzi about the evaluation (the "Recorded Conversation"). (Id. at 67:9-25; see Def.'s Notice of Mot. Ex. S ("Transcript")).

5. Other Employees at the Institute

a. Employees Cited by Silver

Silver recounts examples of other, younger employees of the institute being treated differently than he was.

First, he cites Dr. David Callaway. Callaway was another Institute employee who at one time had been a Lab Head. (Id. at 97:10-98:5). Although during the Recorded Conversation Chiorazzi told Silver that he would discharge both Silver and Callaway at the same time -- near the beginning of 2005 -- for lack of funding, Callaway was permitted to stay on as a Institute employee for two months longer than Silver. (Silver Dep. 97:5-98:9; Chiorazzi Aff. ¶ 28; Chiorazzi Dep. 164:22-166:13; Transcript). Callaway was forty-eight at the time of his discharge on May 16, 2005. (Chiorazzi Aff. ¶ 28; Chiorazzi Dep. 164:15-18).

Second, Silver cites examples of other Institute employees who had no external sources of funding for "years and years" but were not discharged. (Silver Dep. 102:9-13, 115:6-18). Silver names two Scientific track Associate Investigators and one Scientific track Assistant Investigator, and two Technical track Associate Investigators and one Technical track Assistant Investigator, all between the ages of 41 and 52. (Id. at 115:10-18, 150:4-151:2, 152:21-153:17, 154:17-155:7; Braverman Aff. Ex. W). Silver does not name any Senior Investigators on either track. At the time Silver filed his complaint in this case, none of these employees had been discharged from the Institute. (Braverman Aff. Exs. W, X).

Third, Silver submitted employee evaluations of two Scientific track Associate Investigators and two Scientific track Assistant Investigators, and one Technical track Assistant Investigator, all between the ages of 41 and 52. (Braverman Aff. Ex. F). These evaluations show that for many years these employees were graded satisfactory or below on their efforts to obtain funding, and some evaluations contain comments admonishing them to obtain more funding. (Id.). At the time Silver filed his complaint in this case, none of these employees had been dismissed from the Institute. (Id. Exs. W, X).

Fourth, Silver notes that Chu, who had trouble obtaining funding and was forty-five at the time of Silver's dismissal, was shifted to the Technical track so that he was no longer responsible for bringing in his own funds. (Silver Dep. 116:11-21). Chiorazzi testified at his deposition that in 2000 or 2001 he wanted to switch Silver to the Technical track also, because the Institute was being audited and Chiorazzi understood that investigators without NIH grants, such as Silver and Chu, would reflect poorly on the Institute. (Chiorazzi Dep. 70:6-13; Silver Dep. 118:3-23). Chiorazzi testified at his deposition that he did change Silver to the Technical track in 2002. (Chiorazzi Dep. 69:2-70:22).

Fifth, Silver states that while he was not offered a severance package, other, younger employees were. (Silver Dep. 119:6-12). Silver names only Dr. Robert Pergolizza, head of the core facility that provided services to the investigators, as one such employee. (Id. at 119:6-25, 122:9-11). Silver believes Pergolizza to be in his late forties, but produced no documentary evidence with respect to him. (Id. at 129:9-11).

Finally, in 2003 the Institute hired a younger person, Sophia Yancopoulos, to be a medical writer, even though funds were short, she had little experience, and the Institute could have moved Silver ...

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