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Nevin Caple v. Daiichi Sankyo U.S. Pharma

December 20, 2011

NEVIN CAPLE
v.
DAIICHI SANKYO U.S. PHARMA, INC., ET AL.



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

MEMORANDUM

Nevin Caple ("Caple") brings this suit against her employer, Daiichi Sankyo U.S. Pharma, Inc. ("DSI"),*fn1 alleging breach of contract, violation of the Pennsylvania Wage Payment and Collection Law ("WPCL"), and employment discrimination under 42 U.S.C. § 1981. Caple's remaining claims arise out of DSI's alleged failure to re-calculate her incentive compensation and rankings in connection with a data anomaly.*fn2

DSI has filed a motion for summary judgment, to which Caple has responded and as to which DSI has filed a reply. For the reasons set forth below, we will grant DSI's motion for summary judgment.

I. Factual Background

Under Fed. R. Civ. P. 56(a), "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law," where "[a] party asserting that there is a genuine dispute as to a material fact must support that assertion with specific citations to the record." Bello v. Romeo, 424 F. App'x 130, 133 (3d Cir. 2011).

We will thus begin by reciting the undisputed facts in this matter. In so doing, we will keep in mind that "[h]earsay statements that would be inadmissible at trial may not be considered for purposes of summary judgment," Smith v. City of Allentown, 589 F.3d 684, 693 (3d Cir. 2009), and that we should not credit statements in affidavits that "amount[] to (I) legal argument, (ii) subjective views without any factual foundation, or (iii) unsupported assertions made in the absence of personal knowledge." Reynolds v. Dep't of Army, 2011 WL 2938101, at *2 (3d Cir. 2011).

The parties agree on most details of Caple's employment history with DSI. In the one place where it will be relevant, we will note a factual dispute that the parties have each supported with specific citations to the record.

Nevin Caple is a black female. Pl.'s Compl. ¶ 2. Since July of 2008, DSI employed her as a Cardiovascular Specialty Representative ("CVS Representative" or "rep") assigned to sell pharmaceuticals to a specified group of cardiologists in North Philadelphia.*fn3 Glasgow Decl. ¶ 4.i; Pl.'s Dep. 25:22-27:6, 34:15-35:24, 50:15-18, 52:5-53:13; Koniaris Decl. ¶ 12. In addition to salary, Caple was eligible to earn incentive compensation under DSI's CVS Representatives Sales Incentive Bonus Plans ("Bonus Plans"). The Bonus Plans provided for quarterly incentive payments and membership in programs for reps with high performance. Id. 27; Koniaris Decl. ¶¶ 34-40; Exs. C-3 through C-9 at 3,5,7, Exs. C-3 through C-9 at 7.

IMS Health ("IMS") is a major, third-party company that collects data relating to the sales of pharmaceutical products and sells it to that industry. DSI uses IMS's data to calculate the incentives awarded under its Bonus Plans. Koniaris Decl. ¶¶ 3-5. IMS employs a projection data gathering methodology that does not account for each and every prescription written for a particular drug. This method results in a certain acknowledged degree of imprecision in IMS's data. Id. ¶¶ 7,8.

DSI's Bonus Plans specify that all incentive compensation calculations will be performed using monthly IMS Xponent data ("IMS data"). Exs. C-3 through C-9 at 5. Thus, physicians write prescriptions, these data get reported to IMS, and IMS processes the data into a form that it supplies to interested parties in the industry. Koniaris Dep. 10:4-16. IMS periodically provides DSI with data regarding sales of DSI products (such as the high blood pressure medication Azor) and competitors' products (like Exforge) to enable DSI to calculate its market share. Market share factors prominently into DSI's incentive compensation calculations. Koniaris Dep. 10-13.

Arpound July 1, 2008, Caple became a CVS Representative.*fn4 She became responsible for selling two pharmaceuticals -- in particular, Benicar and Azor. Glasgow Decl. ¶ 4.i; Pl.'s Dep. 50:15-18; Pl's Compl. ¶ 8. Much of her incentive compensation plan was determined by Azor sales. Koniaris Decl. Exs. C-3, C-5 at 4.

Caple worked under Dan Pagana ("Pagana"), Senior District Manager, Cardiovascular Specialty Sales-Philadelphia.

Pl.'s Dep. 29:8-10; Duncan Dep. 6:2-6. Some time in the second half of 2008, Caple and Pagana each noticed a larger-than-expected number of competing Exforge prescriptions in an "All Other Third Party" payer category in DSI's Azor Philadelphia market share reports ("data anomaly"). These reports included sales representative data from Caple's North Philadelphia territory and the Central Philadelphia territory. Pl.'s Dep. 81:13-24; Pagana Dep. 9-12. These DSI reports were created based upon IMS-provided data. Koniaris Decl. ¶ 14. Pagana and Caple's incentive compensation both hinged, in part, on these data and DSI's use of it. Pagana Dep. 49-50; Pl.'s Dep. 32:24-34:3.

Pagana spoke with Lee Smith ("Smith"), the Regional Sales Director, and others about the data anomaly. Smith took a lead role in reviewing the issue because he was a supervisor of Primary Care sales representatives in the North Philadelphia territory, one of the regions the anomaly affected. Smith Dep. 6:1-3, 8:21-9:24. Smith then contacted Patrick Keenan, Senior Manager, Regional Market Planning, to assist with the review of the data. Kennan Dep. 10:19-22. Keenan, in turn, contacted IMS and requested that it investigate the data anomaly.

On August 27, 2009, IMS notified Keenan by email that it believed the Exforge data were in fact "sound since the prescriber data [wa]s at acceptable levels." Keenan Decl. Ex. 1. Despite IMS's response, on September 4, 2009 Keenan asked for a further investigation and forwarded additional information to IMS. Id. He sent a list of twenty doctors identified as having the highest volume of Exforge prescriptions in the "All Other Third Party" payer category. This data set captured the top three prescribing doctors' data that factored into Azor compensation calculations for Caple and other DSI employees, which included five Caucasians and one black man. Pl.'s Dep. 92-93; Glasgow Decl. 4.a-4.f. Keenan also notified IMS of a rumor that an Exforge sales representative may have had some improper dealings with one particular pharmacy. Pagana Dep. 23:23-24:6.

On September 22, 2009, IMS submitted a two-page report documenting its investigation's findings ("IMS Report"). Id. Ex. 2. IMS concluded that although the reported Exforge sales volume makes the data "suspect[,] IMS accepted the data into the database because the data passed all IMS quality control edits, therefore no further action can be taken by IMS and no changes will be applied to the IMS database." Keenan Decl. Ex. 2 (IMS Report).

Smith then asked Peter Koniaris, DSI's Director of Sales and Incentives, to look into what, if any, effect the data anomaly might have on DSI's employees' incentive compensation. Smith Dep. 20-21; Koniaris Dep. 5:15-17, 19-20, 24:6-12. Koniaris testified that as part of his task he was asked if a rerun would affect white employee C.M.'s*fn5 compensation. Koniaris Dep. 27:19-7. He was not asked how Caple's compensation would be affected. Koniaris Dep. 27:24-28:8. Koniaris conducted a "hypothetical analytic," Koniaris Dep. 25:11, in which he re-ran Azor bonuses for sales representatives generally (a group that does not include CVS reps) by extracting all of the Exforge prescription data for the North and Central Philadelphia territories over the six month period from January through June of 2009. Koniaris Dep. 26:12-15. Koniaris was never asked to do a similar hypothetical analyses for other territories or for employee classifications besides the Primary Care sales reps. Thus, the incentive compensation of the CVS Representative cohort that included Caple was not recalculated and DSI reached no "determination or assumption one way or the other[] with respect to how this Exforge data would . . . affect[] Ms. Caple." Id. 32:9-17.

In an October 6, 2009 email, Koniaris informed Smith that:

I re[-]ran their AZOR bonus only, and found that [the North Philadelphia territory], where [C.M.] resides, is due $26. [The Central Philadelphia territory] performance was moved minimally by the reduction in Exforge volume and thus did not earn any additional [incentive compensation].

Koniaris Decl. Ex. 1. Though Koniaris recommended that DSI pay C.M. this amount, it chose not to follow this recommendation. Id. ¶ 25. In fact, DSI did not re-run incentive compensation for, or pay additional money to, any employee in connection with the data anomaly.*fn6 Id. ¶ 24.

When Koniaris performed his hypothetical analysis, he "did not know the races of the sales representatives in the Central and North Philadelphia . . . territories, nor did [he] know Nevin Caple's race." Id. ¶ 17. He was not familiar with Caple prior to the initiation of this litigation. Koniaris Dep. 32:6-8.

In light of Koniaris's analysis, he decided that DSI would "not re[-]run[] [Incentive Compensation] Statements or any ranking reports due to this [Exforge data anomaly] as it [does] not provide a cost benefit to the company." Koniaris Decl. Ex.

1. In his deposition, Koniaris explained the basis for his cost-benefit reasoning:

Not only would we [have to re-run incentive compensation statements] for those particular representatives of those particular territories [used in our hypothetical analyses], because we run a relative rank system within the company, if there's any change in rank, one above or two below or whatever the ultimate rank change would be, you would have to do that with the entire company and re-run the entire company's incentive compensation bonus. Knowing full well, in order to represent that small change for one or two territories, the vast majority of the folks wouldn't change, but it would have to be re-run in order to make sure it's captured in the incentive compensation statements.

Koniaris Dep. 29:18-30:5 (emphasis added). Koniaris estimated it would cost between five to ten thousand dollars to re-run the entire compensation and ranking system. Id. 28:24-29:5. Koniaris also explained that his decision was motivated by "IMS ha[ving] determined that the data had passed all of its quality controls and that it would not be changing the data." Koniaris Decl. ¶ 23. Thus, DSI decided to use the IMS data as called for in the Bonus Plans. Id. C-3 through C-9 at 5.

DSI contends that neither it nor IMS ever determined whether the "All Other Third Party" Exforge prescription data was incorrect. Pagana Dep. 16:8-11; Duncan Dep. 15:1-8, 17:1-16; Keenan Decl. Ex. 2 (IMS Report). Caple, on the other hand, contends that "Smith, who led the investigation into the Exforge Data Anomaly, confirmed that IMS determined that the data was false or fake[.]" Pl.'s Resp. Opp. M. Summ. J. 8 (referencing Smith Dep. 14:22-24 ("the prescriptions that were there, were, you know, termed by IMS to be flawed or fake or whatever you want to call it.). A few moments later, Smith testified in his deposition that calling the data "flaw[ed] or fake . . . was probably just my terminology. But I never remember hearing . . . that IMS said that [the data] were fake"). Smith Dep. 19:13-15.

DSI references deposition testimony in which Caple alleged that DSI employees directed racial comments at her in addition to citing other alleged examples of DSI's discriminatory actions. Caple alleged that in January of 2010 she overheard a manager say "'and give her a one-way ticket to Haiti'" because she had inquired into DSI's alleged failure to credit her for certain other drug sales no longer relevant here. Pl.'s Dep. 148:2-149:1-18. Caple also claimed that in early 2010 Pagana called her hair "bushy," id. 165:10-11, and that he told her in June of 2010 that she was hired "'to meet quota.'" Id. 161:11, 163:14-15. Because of DSI's heavily white managerial environment, she labeled it a "white ...


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