United States District Court, S.D. New York
MEMORANDUM AND ORDER
P. KEVIN CASTEL, District Judge.
Dr. Kathleen Mullinix asserts that defendant Icahn School of Medicine at Mount Sinai, sued herein as Mount Sinai School of Medicine ("Mount Sinai"), violated the Age Discrimination in Employment Act ("ADEA''), 29 U.S.C. § 621, et seq., the New York State Human Rights Law ("NYSHRL"), and the New York City Human Rights Law ("NYCHRL"), when it failed to promote her to a Vice President position and later when it terminated her. Plaintiff Mullinix also alleges breach of contract. Mount Sinai moves for summary judgment in its favor. For the reasons stated below, Mount Sinai's motion is granted in pait and denied in part.
Viewing all of the evidence, including a statement made by a decision-maker near the time that the Vice President position was filled by a younger candidate, a reasonable jury could find that Mullinix was not promoted because of her age. However, considering the totality of the evidence and drawing all reasonable inferences in favor of Mullinix, the Comt concludes that no reasonable jury could conclude that Mount Sinai's decision not to renew Mullinix's contract and to terminate her was because of her age. Mount Sinai has produced evidence that the termination arose out of soured professional relationships between Mullinix and certain other employees of Mount Sinai. Mullinix has not produced evidence which rebuts that legitimate, nondiscriminatory reason for her termination.
Mount Sinai has not demonstrated that it is entitled to summary judgment as to Mullinix's breach of contract claim because a reasonable factfinder, given the evidence set forth by Mount Sinai, could find in favor of Mullinix on the breach of contract claim.
The following facts are either not in dispute or, where there is a dispute, the evidence is viewed in the light most favorable to plaintiff as non-movant.
I. Mullinix is Hired as Associate Director
Mullinix holds a Ph.D. in Chemical Biology from Columbia University and received postdoctoral training at Harvard University. (Pl. 56.1 ¶ 164.) Prior to working at Mount Sinai, Mullinix served as Assistant Director of the National Institute of Health, as President, CEO and founder of Synaptic Pharmaceutical Corporation, and as Vice Provost of Columbia University, where she established and built the technology transfer office. (Pl. 56.1 ¶¶ 165-66.) As founder and CEO of Synaptic, Mullinix negotiated all of the company's collaboration and license agreements with major pharmaceutical companies. (Pl. 56.1 ¶ 167.)
Mount Sinai's Office of Technology and Business Development ("OTBD") has the principal objective of "serv[ing] the community by transferring medical breakthroughs from Mount Sinai to the public while ensuring a consistent revenue stream to support the ongoing innovative efforts of Mount Sinai's faculty and staff." (Pl. 56.1 ¶ 1; Mair Decl. Ex. 11.)
In 2009, Mount Sinai hired Mullinix, then 65, as Associate Director for Business Development in the OTBD, one of three associate directors reporting to Dr. Patrick McGrath. (Pl. 56.1 ¶¶ 2, 7.) Mullinix was not provided with an employment contract for her position as Associate Director, but she did receive an offer letter that confirmed the terms of the position, which included an annual salary of $165, 000 per year and a $10, 000 signing bonus. (Def. 56.1 ¶¶ 4; Pl. 56.1 ¶ 3-4.) McGrath, then the OTBD Executive Director, Dr. Dennis Charney, Dean of Mount Sinai, and Dr. Bonnie Davis, Chairman of the Technology Transfer Committee of the Board of Trustees interviewed Mullinix prior to her hire. (Pl. 56.1 ¶ 5.) McGrath was the hiring manager responsible for the decision to hire Mullinix, and Charney approved Mullinix's hire. (Def. 56.1 ¶ 6; Pl. 56.1 ¶ 6.)
II. Mullinix Replaces McGrath as Director
In 2009, Bonnie Davis informed Charney and Dr. Kenneth Davis, the President and CEO of Mount Sinai Medical Center that OTBD was underperforming compared to other institutions regarding the number of technology disclosures, patent applications, patents granted, licenses, research agreements, royalty income and companies spun off. (Pl. 56.1 ¶ 8.) Charney was concerned about shortcomings in McGrath's leadership and interactions with faculty members and potential business partners. He also believed that McGrath had not adequately educated the faculty on issues related to intellectual property and commercialization of science. (Def. 56.1 ¶ 9; Pl. 56.1 ¶ 9; Plevan Decl. Ex. 6 at 21-24.) Mullinix noted that the OTBD lacked leadership, training, financial controls, team spirit, or a concrete strategy to evaluate and address the OTBD's significant costs to maintain its large portfolio of patent applications. (Pl. 56.1 ¶ 15.)
Charney, in concurrence with Ken Davis, President and CEO of Mount Sinai (who gave Charney much discretion), decided to remove McGrath as the OTBD Director. (Pl. 56.1 ¶ 10.) In early July 2010, Charney informed Mullinix of his decision to terminate McGrath and asked Mullinix to become the interim Director of OTBD. Mullinix informed Charney that the term "interim" in her title would diminish her authority and that she was uninterested in accepting the position of interim director. (Pl. 56.1 ¶ 16; Plevan Decl. Ex. 2 at 37.) Charney informed Mullinix a few weeks later that she would become OTBD Director and that she would receive a significant salary increase. (Pl. 56.1 ¶ 17.) Mullinix and Jeff Silberstein, Mount Sinai's Dean for Operations and COO and CAO of the Mount Sinai Medical Center, negotiated her contract. (Pl. 56.1 ¶ 19.)
Charney, who had autonomy regarding personnel decisions, decided to conduct a search for a new position, Vice President of the OTBD ("VP, OTBD"). (Pl. 56.1 ¶¶ 12.) The VP, OTBD would have overall responsibility for the OTBD, replace McGrath as head of the OTBD, and the OTBD director would report to the VP, OTBD. (Mair Decl. Ex. 4 at 59-60.) Charney informed Mullinix that Mount Sinai was going to create a VP, OTBD position and that an executive search firm would be hired to conduct the search for that position. Mullinix stated that she wanted to be considered for the VP, OTBD position. (Pl. 56.1 ¶ 20.) Charney informed Silberstein about the VP, OTBD position after he told Silberstein to negotiate a contract with Mullinix. (Pl. 56.1 ¶ 182.)
Silberstein found the negotiations with Mullinix "unusually difficult" and "very circular." (Plevan Decl. Ex. 4 at 86-87.) Mullinix insisted on being paid severance if she were to be terminated without cause during the initial two-year term of her contract. Silberstein informed Charney that he found Mullinix very difficult to deal with and that she was making demands regarding severance benefits and language changes that he considered unreasonable. (Plevan Decl. Ex. 4 at 92-97.) Mullinix noted to Silberstein in an email dated September 28, 2010 that the "back and forth" in their negotiation "does not wear well, to put it mildly." (Pl. 56.1 ¶ 26.) Silberstein found Mullinix's email "rude" because he believed that Mullinix had created the animosity in their negotiations. (Def. 56.1 ¶ 27; Pl. 56.1 ¶ 27.)
Silberstein understood that Mullinix would assume the role of director for a limited duration because Charney planned to search for a VP, OTBD. (Pl. 56.1 ¶ 178.) On September 29, 2010, Silberstein emailed Charney asking whether Charney would agree to Mullinix's request that Mount Sinai guarantee her compensation for a full two years and a minimum of six months of severance if she were terminated without cause. Silberstein noted in the email that Mullinix's "behavior and tone" during the negotiations had been "questionable at best" and that her conduct "doesn't bode well for the marriage." (Def. 56.1 ¶ 28; Pl. 56.1 ¶ 28; Plevan Decl. Ex. 16.) Silberstein initially offered Mullinix a base salary of $225, 000 and a 10% bonus. (Pl. 56.1 ¶ 23.) Charney agreed to a two-year contract, a $250, 000 salary, and a minimum of six months of severance if she was terminated without cause during the term of the contract, stating in an email that "we need her and it may take time to recruit a new chief and get that person started, " and directed Silberstein to include such language in a revised contract. (Def. 56.1 ¶¶ 24, 29; Pl. 56.1 ¶¶ 24, 29; Plevan Decl. Ex. 16.)
Mullinix executed a two-year employment contract with an "Initial Term" of July 12, 2010 through July 11, 2012, which provided that Mullinix would be a candidate for the VP, OTBD position. (Pl. 56.1 ¶¶ 30-31.) The contract also provided that Mullinix was eligible to receive severance benefits if she ceased to hold the OTBD Director position "by reason of Mount Sinai's termination of [her] employment of such position during the Initial Term" and that if Mullinix became eligible for any severance "as a condition of receiving such amounts, you shall execute and agree to be bound by a waiver and general release of any and all claims arising out of or relating to your employment with Mount Sinai and termination thereof in such form as may be required by Mount Sinai." (Pl. 56.1 ¶ 32; Plevan Decl. Ex. 17 at D00098, D00099.) Charney refused Mullinix's request for an internal announcement to be issued regarding her appointment as director. (Pl. 56.1 ¶ 180.)
Mullinix reported to Charney until June 1, 2011. (Pl. 56.1 ¶ 33.) Charney rated Mullinix's performance as "Exceeds Expectations" in December 2010 and later noted that he found that Mullinix's performance exceeded expectations throughout the entire period she reported directly to him. (Pl. 56.1 ¶ 35.) However, during Mullinix's meetings with Charney, Mullinix made negative statements about some faculty members, including Dr. Peter Palese and Dr. Robert Desnick. Charney was concerned about the intensity and negativity of Mullinix's feelings, as it was important for Mullinix to maintain positive relationships with faculty, and informed Ken Davis that Mullinix had difficulties working with certain faculty members. These faculty members were generally viewed as difficult to work with. Charney removed Desnick from his position as the Chairman of the Department of Human Genetics in late 2011 or early 2012, and Charney and Ken Davis admitted that they did not trust Desnick. (Def. 56.1 ¶¶ 36-37; Pl. 56.1 ¶¶ 34, 36-37.)
III. VP, OTBD Search
Mount Sinai retained an executive search firm led by Sean McCooe to identify candidates for the VP, OTBD position. (Pl. 56.1 ¶ 38.) Mount Sinai approved a job description for the VP, OTBD position created by McCooe. The description stated that the position required "15 year's business experience, including significant personal participation with the leadership of one or more life science-based businesses." (Pl. 56.1 ¶ 39; Mair Decl. Ex. 31 at D00117.) Silberstein orchestrated the search process. (Pl. 56.1 ¶ 40.) Charney and Ken Davis told Silberstein that Mullinix would be a candidate for the VP, OTBD position, and Silberstein informed McCooe to include her as a candidate. (Pl. 56.1 ¶¶ 41-42.) McCooe met with Silberstein, Charney, Ken Davis, Bonnie Davis, and a number of faculty members regarding the search. (Pl. 56.1 ¶¶ 43-44.) McCooe stated at his deposition that faculty members informed him that Mullinix was "not representing them well" and they preferred not to work with her. (Def. 56.1 ¶ 45; Pl. 56.1 ¶ 45.)
McCooe considered more than 80 candidates for the VP, OTBD position. (Pl. 56.1 ¶ 51.) McCooe's notes from his October 15, 2011 interview with another candidate interviewed for the VP position at Mount Sinai, state "Kathleen mid 60's to Retire." (Pl. 56.1 ¶ 186.) In November 2010, Mullinix met with McCooe at a coffee shop in Manhattan. (Pl. 56.1 ¶ 52.) Mullinix felt that McCooe was uninterested in discussing her candidacy or her credentials. (Mullinix Decl. ¶ 10.) In December 2010, Mullinix asked Charney about the status of the VP, OTBD search. Charney informed Mullinix that McCooe had said that Mullinix did not want to be a candidate for the position. (Pl. 56.1 ¶ 54.) On December 22, 2010, Mullinix emailed Charney stating that she had spoken with McCooe and that they had concluded that "there was some misunderstanding concerning my wish to be considered for the Vice President, Technology and Business Development position." (Pl. 56.1 ¶ 55.) Upon receipt of that email, McCooe's office manager, Liz Lavin, emailed McCooe and stated, "I didn't think they were interested in her for the VP role." (Pl. 56.1 ¶ 197.) After receiving Mullinix's December 22, 2010 email, Charney and Silberstein told McCooe to "do a good interview with Dr. Kathleen Mullinix." (Pl. 56.1 ¶ 198; Mair Decl. Ex. 5 at 138.)
Mullinix was not listed on any monthly reports reflecting the status of candidates considered in the VP search process until January 2011. (Pl. 56.1 ¶ 196.) Charney and McCooe did not contact references provided by Mullinix. (Pl. 56.1 ¶ 203.)
On January 18, McCooe met again with Mullinix regarding the VP, OTBD position and he sent Silberstein comments about the interview. (Pl. 56.1 ¶ 56.) Ken Davis and Charney interviewed six candidates, including Mullinix, for the VP, OTBD position. (Pl. 56.1 ¶ 47.) On January 20 and 21, 2011, Ken Davis, Charney, and faculty members Dr. Ross Cagan and Dr. Roger Hajjar interviewed Mullinix. (Pl. 56.1 ¶ 57.)
Ken Davis believed that Mullinix was a viable candidate for the VP, OTBD position because she had done an adequate job leading the OTBD since July 2010. However, he also felt that Mullinix had not created a "user friendly" office, which he believed to be important to a successful OTBD. At the time of these interviews, Charney had informed McCooe that he had decided that Mullinix would be interviewed, but would not get the VP job. (Def. 56.1 ¶ 59; Pl. 56.1 ¶ 59.)
Mullinix alleges that at a Dean's Leadership meeting in March 2011, Charney stated that he was excited about the VP, OTBD search and that "I am looking for a more youthful approach. This office is going to be different." (Pl. 56.1 ¶ 161; Mair Decl. Ex. 4 at 148-49.)
Teri Willey was the Chief Executive of Cambridge Enterprise Limited ("Cambridge"), a subsidiary of the University of Cambridge, responsible for the commercialization of technology arising from Cambridge University faculty. As will be discussed, she was the successful candidate for the VP, OTBD position. She was 51 years old when she was appointed VP, OTBD of Mount Sinai. (Pl. 56.1 ¶¶ 61, 191.) Prior to Cambridge, Willey was Vice President of the technology transfer arm of the University of Chicago and the Managing Partner of an early stage venture fund focused on investing in spinouts from University technology transfer programs. Willey had also worked in the technology transfer offices at Northwestern University and Purdue University and had served as the President of the Association of University Technology Managers ("AUTM"). (Pl. 56.1 ¶ 62.) For approximately one year, Willey served part-time as the director of business development at Endocyte, a biotech company that develops therapeutic targeting products. (Def. 56.1 ¶ 63; Pl. 56.1 ¶ 63.) Willey also served as a director of Rubicon Genomics and Nephryx, Inc., but she did not have "specific operational duties" at Rubicon and did not have "specific responsibilities for operational issues" at Nephryx. (Def. 56.1 ¶ 63; Pl. 56.1 ¶ 63.)
McCooe contacted Willey in October 2010, and she expressed interest in the VP, OTBD position. (Pl. 56.1 ¶ 64.) Silberstein received materials on Willey, including a reference from Dr. Michael Cleare, Associate Vice Provost for Research & Executive Director for Technology Transfer at the University of Pennsylvania. Dr. Cleare told McCooe that Willey "has all the requisite experience and has proven self-skillful and political with administration and faculty." (Pl. 56.1 ¶¶ 65-66.) Charney and Ken Davis interviewed Willey because of her strong background, including her experience at Cambridge and AUTM. (Pl. 56.1 ¶ 67.) Ken Davis was "overwhelmed" by Willey's credentials and through that she could be a "superstar." (Pl. 56.1 ¶ 68.) On January 26 and 27, Willey interviewed with Silberstein, Ken Davis, Charney, Hajjar, Cagan, Robert Desnick and Michael McDonald, Mount Sinai's General Counsel; she made a well-received presentation to a group of faculty members, and also met with Mullinix. (Pl. 56.1 ¶¶ 69-70.)
After meeting with Willey, Mullinix described Willey as an "excellent selfpromoter" in an email to McGrath. She noted that "she'll probably get the job in any event - I can see how they would fall for her starting company routine (she's not started anything with venture money). I'm feeling very forlorn at this point." (Pl. 56.1 ¶ 71.)
McCooe sent additional references regarding Willey to Silberstein, including one provided by Dr. Kathy Ku, Director and Office of Technology Commercialization at Stanford University, who "highly recommend[ed]" Willey; one provided by Dr. Richard Jennings, Deputy Director of Cambridge, who described Willey's ability to "get collective support across the university at the highest levels and with the highest respect" as "jaw-dropping" and noted that the Cambridge program was being replicated at other institutions, including Oxford and the Royal Academy of Medicine. Other references described Willey as "the best technology transfer person in the UK" and having "great connections" on the east coast and throughout the United States. (Pl. 56.1 ¶¶ 73-76.)
Silberstein told Charney that he thought that Willey was the best candidate for the VP, OTBD position and informed Ken Davis that Willey would be a "perfect fit" for Mount Sinai. (Pl. 56.1 ¶ 77.) Hajjar informed Mullinix that she had his vote based on her work as Director of ...