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Elenna Kim-Foraker v. Allstate Insurance Company

July 14, 2011

ELENNA KIM-FORAKER,
PLAINTIFF,
v.
ALLSTATE INSURANCE COMPANY, DEFENDANT.



The opinion of the court was delivered by: Norma L. Shapiro, J.

MEMORANDUM

Plaintiff Elenna Kim-Foraker ("Kim-Foraker") brings claims against her former employer, defendant Allstate Insurance Company ("Allstate"), for race and national origin discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. Ann. § 955 et seq. The court has jurisdiction under 28 U.S.C. §§ 1331 and 1367. Before the court is Allstate's motion for summary judgment. The court will grant Allstate's motion.

I. Background

Kim-Foraker, a Korean-American, began working as a trial attorney at Allstate's Philadelphia legal office in May, 1999. In 2004, she was promoted to the position of senior trial attorney, responsible for training less experienced trial lawyers.

Kim-Foraker was the only Asian-American attorney working in Allstate's Philadelphia legal office from May, 1999 until her termination in September, 2006. Richard Steiger ("Steiger"), a Caucasian man, was her immediate supervisor. She also briefly reported to Walter Robinson ("Robinson"), an African-American man. Kim-Foraker and her immediate supervisors each reported to Twanda Turner-Hawkins ("Turner-Hawkins"), an African-American woman, who was the head of Allstate's Philadelphia legal office.

In early 2006, Allstate alleges that Kim-Foraker began to engage in disruptive and unprofessional behavior in the workplace, in violation of Allstate's policy requiring each employee to treat all other employees with dignity and respect, conduct oneself in a professional manner, and create a supportive rather than a negative working environment. Def.'s Mot. for Summ. J., Ex. D (Unacceptable Behavior Notification). Allstate's policy, entitled "The Allstate Partnership," states that employees are expected to "[f]oster dignity and respect in all interactions. Treating each other with dignity and respect, regardless of job level or relationship, is the standard at Allstate. Nothing less is acceptable." Id.

On February 15, 2006, a representative from Allstate's Central Processing Unit ("CPU") held a meeting with all Allstate attorneys in the Philadelphia office to discuss how the CPU could better serve the office's administrative needs. Id. Allstate alleges that during the meeting, KimForaker asked several questions of the CPU representative in a confrontational and argumentative manner. Id. Kim-Foraker admits that her supervisor, Steiger, believed she acted unprofessionally (he communicated this to her in a subsequent meeting), but she disputes Allstate's characterization of her behavior and states she did not act in a confrontational manner or raise her voice. Id., Ex. A (Dep. of Kim-Foraker) at 111:1-113:1.

On March 1, 2006, Kim-Foraker met with Allstate attorney manager Robinson in his office. She informed Robinson that certain judges were criticizing and threatening sanctions against Allstate's Philadelphia office because of its failure to meet deadlines and comply with court orders. Id. at 127:1-130:17. Shewas upset about the criticism because she felt it harmed her reputation, and she requested that Robinson, as a manager, take action to correct the situation. Id. She also complained that other employees in the Philadelphia office failed to inform her of phone messages, so that she missed deadlines. Id. at 120:4-122:24.

The conversation became heated. Allstate alleges that several co-workers with nearby offices heard Kim-Foraker screaming at Robinson for approximately fifteen minutes. Id., Ex. B (human resources investigation) at 2-3. Alarmed, the co-workers summoned Steiger to intervene on Robinson's behalf. Id. Steiger entered Robinson's office. Id. Steiger reports that Robinson asked Kim-Foraker to leave, but she refused, and Robinson left instead. Id. at 1-2. According to Kim-Foraker, she did not yell but instead remained calm. Id., Ex. A (Dep. of Kim-Foraker) at 127:1-130:17. Kim-Foraker alleges that as Robinson left his office, he stepped on her right foot, hit her left shoulder with his body, and then slammed his body against her and knocked her backwards. Id. at 136:15-138:14. Robinson states he cannot remember what happened, but acknowledges that Steiger told him he accidentally bumped into Kim-Foraker. Id., Ex. B (human resources investigation) at 3. Steiger states that Robinson may have bumped Kim-Foraker on his way out, but states it was accidental and only a "minor graze." Id. at 2.

Kim-Foraker filed a human resources complaint against Robinson for the March 1, 2006 incident. Id. at 1. Allstate's human resources manager conducted an investigation, from March 1 to 3, 2006, during which she interviewed Allstate employees who had witnessed or overheard the March 1, 2006 incident. Id. at 1-4. The human resources investigator concluded that Robinson did not violate any Allstate policy; she found that he did not intentionally bump into KimForaker, and that he raised his voice only at the end of the meeting when he asked Kim-Foraker to leave his office. Id. at 3-4. In contrast, the investigation found that Kim-Foraker acted unprofessionally by engaging in argumentative behavior. Id.

The human resources investigator also concurred with recommendations from Steiger and Turner-Hawkins that Kim-Foraker be issued a written warning for unacceptable behavior. Id. at 4. On March 3, 2006, Steiger presented Kim-Foraker with an Unacceptable Behavior Notification. The notification cited February 15 and March 1, 2006 as incidents of inappropriate behavior inconsistent with Allstate's policy of treating all employees with dignity and respect, and stated that further instances of inappropriate behavior would result in a Job in Jeopardy Notification. Id., Ex. D (Unacceptable Behavior Notification).*fn1 After receiving the Unacceptable Behavior Notification, Kim-Foraker took an approved medical leave until May 15, 2006, when she had exhausted her paid days off and returned to work on a reduced schedule.*fn2

Id., Ex. A (Dep. of Kim-Foraker) at 160:3-18.

Upon her return to work in May, 2006, Allstate alleges that Kim-Foraker's unprofessional behavior continued. For example, Allstate states (and Kim-Foraker does not dispute) that, unprompted, she discussed with insurance adjusters the March 1, 2006 incident, including her allegations that Robinson physically injured her; this discussion made the insurance adjusters feel uncomfortable, and distracted the adjusters' attention from attending to customer issues. Id., Ex. F (Job in Jeopardy Notification). On May 26, 2006, Allstate issued a Job in Jeopardy Notification to Kim-Foraker. Id. The notification stated that Kim-Foraker continued to engage in unprofessional behavior in violation of Allstate's policy, and cited specific examples of her unprofessional behavior. Id. The notification also cited Allstate's policy requiring professional behavior in the workplace, and stated that failure to improve her behavior and comply with the policy, or make reasonable effort to do so, could result in her immediate termination. Id.*fn3

On August 30, 2006, Kim-Foraker met with the human resources manager and supervisors Turner-Hawkins and Steiger to discuss her medical condition. They asked KimForaker to complete Family and Medical Leave Act ("FMLA") paperwork to continue working on a reduced schedule. Id., Ex. A (Dep. of Kim-Foraker) at 190:16-193:14, Ex. G (August 30, 2006 human resources memorandum). According to Turner-Hawkins and the human resources manager, Kim-Foraker began yelling that she would not complete FMLA forms because she had a workers' compensation claim pending, and she believed completing the FMLA forms would foreclose her eligibility for workers' compensation. Id., Ex. G (August 30, 2006 human resources memorandum). The human resources manager explained that the FMLA forms would not affect her workers' compensation claim, and that completion of the forms was necessary to continue her reduced work schedule, but Kim-Foraker cut off the explanation and continued to yell; co-workers overheard the yelling. Id. According to Kim-Foraker, she refused to complete the FMLA forms, but she did not yell. Id., Ex. A (Dep. of Kim-Foraker) at 190:16-193:14.

Following the August 30, 2006 encounter, Turner-Hawkins suspended Kim-Foraker without pay until further notice for unprofessional behavior, and submitted a recommendation for termination of Kim-Foraker's employment to the human resources manager. Id., Ex. H (August 30, 2006 termination recommendation). Turner-Hawkin's recommendation cites specific instances of Kim-Foraker's unprofessional behavior, including the March 1, 2006 and August 30, 2006 incidents, and notes that Ms. Kim-Foraker was warned that continued unprofessional behavior would lead to her termination. Id. The human resources manager forwarded the recommendation to the human resources senior manager, who concurred and submitted her own recommendation for Kim-Foraker's termination to the Allstate Vice President of Litigation Services and Allstate Claims Director for Litigation Services. Id., Ex. G (August 30, 2006 human resources memorandum), Ex. I (termination request). Kim-Foraker's termination was approved on September 5, 2006 by the Vice President of Litigation Services and Claims Director for Litigation Services. Id., Ex. I (termination request). On September 6, 2006, Turner-Hawkins informed Kim-Foraker that her employment was terminated. Pl.'s Pretrial Memo. at 4. Since her termination from Allstate, Kim-Foraker has sought new employment but has been unable to find employment in a state in which she is a member of the bar. Id., Ex. A (Dep. of Kim-Foraker) at 260:18-262:14.

Kim-Foraker alleges Allstate terminated her employment because of her race and national origin. She states that although she behaved similarly to other attorneys in Allstate's Philadelphia legal office, the other attorneys, who were not Asian-American, were not disciplined. Pl.'s Third Supp. Pretrial Memo. at 2, 5; Def.'s Mot. for Summ. J., Ex. A (Dep. of Kim-Foraker) at 227:7-229:11. She also identifies discriminatory remarks uttered by her supervisor, Turner-Haskins, including:

* After the February 15, 2006 CPU meeting: "[W]e had a meeting, this was in front of everybody, all the lawyers as well as the staff, where Twanda looked at me straight in the face and said that she was taking kung fu, and that was very derogatory, sir." Def.'s Mot. for Summ. J., Ex. A (Dep. of Kim-Foraker) at 213:15-214:5.

* At some date between February 15 and March 1, 2006: "Mrs. Twanda Turner-Hawkins told Mr. Steiger that I was on the take, that I dress too well and that Koreans always use cash and for the place I'm working for I was just looking too good. Id. at 207:4-7.

* At some date between February 15 and March 1, 2006: "[S]he basically told me that you Koreans, you work hard, you're a model minority, so therefore I expect you to produce more than the other lawyers in this office, but if you rat on the white guys and also the old dudes, she didn't say dudes, the old lawyers, you know who I am talking about, she said . . . then I'll help you out and you won't get as much." Id. at 215:2-8, 217:10-12.

She admits that none of these remarks were made during the March 1, 2006 confrontation with attorney manager Robinson, the August 30, 2006 meeting at which she was suspended, nor the September 6, 2006 meeting at which she was terminated. Id. at 230:5-20.

After exhausting her administrative remedies, Kim-Foraker filed a two-count complaint in federal court. Count I alleges hostile work environment and individual disparate treatment violations of Title VII; Kim-Foraker alleges she was disciplined more severely and ultimately terminated because of her race and national origin. Count II alleges violation of the PHRA for individual disparate treatment. Kim-Foraker requests back pay,*fn4 reinstatement with seniority, compensatory and punitive damages, and reasonable attorney's fees and costs.

Following a failed settlement discussion and court-permitted withdrawal of her attorney, Kim-Foraker has proceeded pro se.*fn5 The court is patient with pro se litigants, but plaintiff, an attorney, has pursued her claim in a dilatory manner.*fn6

Kim-Foraker did not discuss the Title VII hostile work environment claim in any of her four pretrial memoranda, nor at the final pretrial conference; we deem the claim abandoned.*fn7

Regarding her individual disparate treatment claims, Kim-Foraker clarified at the final pretrial conference:

I think they had multiple reasons why they fired me. One of the reasons is because I was Korean and Asian, under Title VII. The other reason was because I was a whistleblower and I told them about all the illegal activities that was [sic] going on when I was on paid medical leave for my husband's heart failure. The third reason is because, according to Ms. [T]wanda Turner-Hawkins, I should be treated differently because I was Korean and that I was doing illegal activity -- it was -- with the other lawyers, and these kinds of allegations were put against me and I never, ever did anything like that.

Tr. 12/15/10 64:12-22. Allstate moves for summary judgment for failure of proof on the Title VII and PHRA ...


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