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Mason v. Davita Inc.

March 31, 2008


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


James Mason, an African American male, was not selected in January and March 2006 for a Pharmacy Services Representative ("PSR") position by DaVita Rx, a subsidiary of DaVita, Inc., for which Mr. Mason works. He has sued under the D.C. Human Rights Act, D.C. Code § 2-1401 et seq., alleging that his non-selection was because of his race and/or retaliation for protected activities. DaVita moves for summary judgment at the close of discovery, opposed by Mr. Mason. See Def.'s Mot. for Summ. J. on Count I of the Second Am. Compl. and Mem. of P. & A. in Supp. of Summ. J. on Count I of the Second Am. Compl. (Def.'s Mem. I") [Dkt. #24] and Def.'s Mot. for Summ. J. on Count II of the Second Am. Compl. ("Def.'s Mem. II") [Dkt. #39].


DaVita operates dialysis centers across the United States. Def.'s Statement of Undisputed Material Facts In Supp. of Summ. J. on Count I of the Second Am. Compl. ("Def.'s Facts") [Dkt. #24] ¶ 1. Mr. Mason has worked for DaVita for twelve years as a Patient Care

Therapist, responsible for performing dialysis training and patient education. Pl.'s Second Amended Complaint ("SAC")[Dkt. #22] ¶ 5. In 2005, he received recognition as a "Shining Star," that is, the staff person at his DaVita dialysis clinic whom patients voted to be the most capable and best liked. Def.'s Facts ¶ 28; Def.'s Mem. I, Ex. 8, Deposition of James Mason ("Mason Dep.") at 46. Throughout the pendency of this lawsuit, Mr. Mason has continued to work for DaVita as a PCT at its Georgetown Facility in Washington, D.C. Def.'s Mem. II, Ex. 15, Declaration of Janis Bonnet ("Bonnet Decl.") ¶ 2. DaVita's PCTs perform hemodialysis therapy and data collection. Id.

In late 2004, DaVita started to develop a pharmacy business to complement its dialysis centers. Def.'s Facts ¶ 2. "DaVita Rx," as it was named, provides prescription drugs by mail to the patients who receive care in the parent company's outpatient care facilities. Id. ¶ 1. From January to July/August of 2005, DaVita ran a "pilot" of the new business, after purchasing a small pharmacy. Def.'s Mem., Ex. 5, Deposition of Joshua Golumb ("Golumb Dep.") at 15. As the new business grew, it hired PSRs, whose job it was to convince DaVita employees (all DaVita employees are called "teammates") in the dialysis clinics that this was a good way to advance patient care; convince patients that they should obtain their medications from DaVita Rx; and convince physicians that the concept would help their patients.*fn2 See Def.'s Mem., Ex. 2(A) (PSR Job Description). With respect to physicians, the PSRs were expected to "sell them on the value of Davita RX [sic]." Golumb Dep. at 44. By the time the DaVita Rx business was fully built up, it was anticipated that DaVita Rx would end up with 30-40 PSRs working their own territories. Def.'s Facts ¶ 6. But "especially during [the] early stages, they worked very collaboratively. They worked in teams." Golumb Dep. at 50.

A. DaVita RX

In late November 2005, DaVita Rx posted a position vacancy on the DaVita website for a PSR to be based in Washington, D.C. At that time, Kimberly Easlon was in charge of hiring all PSRs. See Def.'s Mem. I, Ex. 2, Declaration of Kimberly L. Easlon ("Easlon Decl.") ¶ 2. Ms. Easlon started with DaVita Rx in a part-time position when the business was very new and became full-time in February 2005. Def.'s Facts ¶ 5. She developed the PSR position after working in the dialysis clinics doing actual patient enrollments herself "to decide what type of person would be best suited for this type of a position and what their qualifications would be. And through putting together our process, we also put together a plan on how to train" new PSRs. Def.'s Mem., Ex. 6, Deposition of Kimberly Easlon ("Easlon Dep.") at 23.

The pharmacy services rep is responsible for many things and wears many different hats.

They are responsible for working directly with the patients to enroll them in our service. They are responsible for working with teammates within the facility to make sure they gain teammate buy-in and teammate support.

And they are responsible for working with physicians to make sure that the physicians support and understand our program.

. . . [P]robably 50 percent of the PSR's time is spent doing administrative work alone. Now, of the remaining 50 percent, about 30 percent of that would be spent with patients, 15 percent with teammates, and 5 percent with physicians.

Id. at 26.*fn3 Mr. Mason responded to the posting and applied for the D.C.-area PSR position by sending in his resume in November 2005. Def.'s Facts ¶ 27. Mr. Mason's resume did not refer to his race and listed no work experience in administration, management, or sales. Def.'s Mem., Ex. 2(C).

Ms. Easlon screened the resumes she received and called Mr. Mason and Christopher Jones, another DaVita employee for 15-minute telephone interviews. She invited both of them to meet her in Richmond, Virginia, for an in-person interview on December 12, 2005, when she would be in that city; she was only going to be in Richmond for one day. See Easlon Decl. ¶¶ 5-6. Mr. Jones accepted the invitation; Mr. Mason declined because it was a day on which he was to work a 15-hour shift and the clinic was understaffed, making it difficult for him to take the time off. Id. ¶¶ 6-7; SAC ¶ 6. Ms. Easlon told Mr. Mason that she was about to go on a vacation and would not return until January but that she would contact him then. Def.'s Facts ¶ 33; Def.'s Mem., Ex. 8, Mason Dep. at 137-40. However, Mr. Jones traveled to Richmond and was interviewed in person by Ms. Easlon. SAC ¶ 6. She was impressed enough to send him to California, for interviews with other DaVita Rx managers. Easlon Decl. ¶ 7. Mr. Jones did well in those interviews. He was offered, and accepted, the D.C. PSR position on December 20, 2005. Id.

When he did not hear from Ms. Easlon in early January 2006, Mr. Mason sent her the following email:

Re: Davita Pharmacy enterview

Ms Easlon It was very exciting talking with you about the Pharmacy rep. position. Im just e-maling you, to let you know about my work scedule for Jan.06. I believe that I would be a great asset in recruting patients for Davitas Phamacy program, and Im again excited about the posibility. Again thank you for the opertunity to join the crew.

Def.'s Mem., Ex. 2(E) (errors in original). Ms. Easlon apologized for not contacting Mr. Mason sooner and told him that she "regret[ted] that we have filled the position that was available in your area." Id. She was also unimpressed with his email, with its typographical and spelling errors, and decided that he did not have sufficient attention to detail to perform well as a PSR. Easlon Dep. at 83 ("After I received Mr. Mason's e-mail, it had many errors in it. He was no longer a candidate. . . . Actually, he was no longer a candidate once Chris was hired. Chris accepted the job. But when Mr. Mason sent me the e-mail, it solidified it.").

On January 27, 2006, Mr. Mason filed an internal charge with DaVita, asserting that he was not selected for the D.C. PSR position because of his race. See Def.'s Facts ¶ 45; SAC ¶ 8. Ms. Easlon did not know Mr. Mason's race prior to his filing of this internal complaint. Easlon Dep. at 70-72; Easlon Decl. ¶ 2, Ex. 2. Mr. Mason had never communicated his race to anyone at DaVita Rx in connection with his PSR job application, nor did he mention his race in his communications with Ms. Easlon. Mason Dep. 131-33, Easlon Decl. ¶ 13. On or about February 9, 2006, the Human Resources Manager responsible for interviewing Mr. Mason about his complaint, Gail Gardner, spoke to Josh Golomb about Mr. Mason's complaint. Def.'s Mem. I, Ex. 3, Declaration of Gail Gardner ("Gardner Decl.") ¶ 5, Ex. 3. In response, Josh Golomb decided to conduct his own telephone interview with Mr. Mason and come to his own conclusions. See Def.'s Reply I, Ex. 13 at 87. Mr. Golomb spoke to Ms. Easlon to find out why she had not conducted an in-person interview with Mr. Mason. Golomb Dep. at 69-70. Ms. Easlon told him that she had been only considering Mr. Mason for the Washington D.C. post and that that position was filled. Easlon Dep. at 73. Although it was not DaVita Rx's practice to relocate people to fill PSR positions, Mr. Golomb decided to interview Mr. Mason for a PSR position outside the Washington D.C. area. Gardner Decl. ¶ 5. Ms. Easlon forwarded the January email from Mr. Mason to Mr. Golomb because she "didn't feel Mr. Mason was a qualified candidate" due to the misspellings in the email and the large portion of the PSR job that entails administrative paperwork. Easlon Dep. at 84. However, Mr. Golomb was Ms. Easlon's supervisor and had the authority to hire Mr. Mason over her objection. Id. at 86-87.

Mr. Golomb called Mr. Mason and arranged for a telephone interview to take place on March 9, 2006, at 8:00 a.m. Eastern Standard Time. Golomb Dep. at 92-93. Although he has his office in Northern California, Mr. Golomb was in Orlando, Florida on the day of this interview. Id. at 93. Mr. Golomb called Mr. Mason at his home at the appointed time but Mr. Mason did not answer. Id. at 94-95. Mr. Golomb left messages at Mr. Mason's home and on his cell phone. Id. at 95. After waiting for half an hour, Mr. Golomb left his hotel room for his first appointment of the day. Id. at 95-96. Mr. Mason called Mr. Golomb when the latter was driving and apologized for having thought the time for the call was 8 a.m. Pacific Standard Time, or 11 a.m. on the East Coast. Id. at 97. Mr. Golomb pulled off the road and conducted a 45-minute interview with Mr. Mason. Id. at 98. The interview included questions about how Mr. Mason would handle various situations, dealing with patients, teammates and physicians. Id.. at 100-107; Mason Dep. at 164-66. Mr. Golumb thought Mr. Mason "gave decent but not particularly strong answers." Golomb Dep. at 106.

When asked about patients, Mr. Mason said that he would emphasize the convenience of having medications delivered to the clinic. Id. at 103; Mason Dep. at 164. Mr. Golumb noted that Mr. Mason "focused on the financial aspect" of DaVita's incentive compensation programs when describing how he would approach teammates. Golomb Dep. at 103. Mr. Golumb also said that Mr. Mason "talked about emphasizing that this is good for patients," when asked how he would approach doctors. Id. However, Mr. Golumb offered that "[a] strong answer for those questions shows a thoughtfulness and an empathy to understand where the person is coming from and to tailor your answer." Id. at 106. "The aspect that gets [teammates] excited about DaVita Rx is that this supports patient care . . . . [As an example,] if a clinic has performed poorly on a metric around bone and mineral metabolism, which is one of our key metrics, then there are a few drugs that we provide that we think we drive greater adherence to and to emphasize patients using DaVita Rx will more likely take those drugs that are needed for that condition and have better outcomes over time." Id. at 107-08. Mr. Golumb, comparing Mr. Mason and Mr. Jones, further explained:

Mr. Jones had demonstrated a greater knowledge of what motivates teammates and physicians, and he demonstrated a better understanding of the sales process in general, which is to understand your customer and what they care about and then tailor your message to them as opposed to deciding yourself what you think they should care about and pushing that message.

Id. at 108-09. In addition, Mr. Golumb was concerned that Mr. Mason had not completely thought through the consequences of accepting a job that involved travel for 75% of his time. Mr. Golumb's own experience is that "travel is very challenging and draining on anyone" but Mr. Mason's "very short, curt response that it was fine" "felt a bit to me like he was telling me what he thought I wanted to hear as opposed to really demonstrating that he had thought through the implications." Id. at 113-114. Mr. Mason has decried Mr. Golomb's explanations as litigation justifications. See Pl.'s Opp'n to Def.'s Mot. for Summ. J. on Count II of the Second Am. Compl. [Dkt. #43]. But the record reflects that Mr. Golomb recounted these thoughts in an email on March 17, 2006, months before this suit was filed. See Pl.'s Mem. I, Ex. 1A. Specifically, Mr. Golumb addressed interviews that he had, not just with Mr. Mason, but also another applicant, and reported:

James [Mason] was solid overall. Jeff was mediocre. However neither of them was as strong as other candidates we have been interviewing in terms of the following areas:

* Understanding and experience of sales

* Sales effectiveness (in role plays I did with ...

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