NORMA L. SHAPIRO, District Judge.
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. 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.
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, Kim-Foraker asked several questions of the CPU representative in a confrontational and argumentative manner. Id. Kim-Foraker
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. She was 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 Kim-Foraker, 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).
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.
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).
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:
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,
Following a failed settlement discussion and court-permitted withdrawal of her attorney, Kim-Foraker has proceeded pro se.
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.
Tr. 12/15/10 64:12-22. Allstate moves for summary judgment for failure of proof on the Title VII and PHRA individual disparate treatment claims.
Summary judgment must be granted if, viewing the evidence in the light most
Kim-Foraker brings claims for individual disparate treatment under Title VII and the PHRA. Title VII makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). The PHRA makes it unlawful "[f]or any employer because of the race, color, religious creed, ancestry, age, sex, national origin or non-job related handicap or disability ... to discharge from employment ... or to otherwise discriminate against such individual." 43 Pa. Stat. Ann. § 955. The same standards apply to claims under Title VII and the PHRA on a summary judgment motion. Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410 (3d Cir.1999).
Individual disparate treatment cases generally occur where an employer has "treated [a] particular person less favorably than others because of" a protected trait. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 985-986, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988). "The ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination." Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 153, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Kim-Foraker may sustain her individual disparate treatment claims by presenting: (a) direct evidence of discrimination; (b) circumstantial evidence of discrimination under the pretext framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); or (c) direct or circumstantial evidence under the mixed motive framework set forth in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989).
Kim-Foraker did not present direct evidence of discrimination. Kim-Foraker discussed, at the final pretrial conference, her supervisor's discriminatory remarks regarding her race and national origin, but she failed to present evidence, either by her signed affidavit, deposition testimony, or any other evidence of record, with her response to Allstate's motion for summary judgment. However, Allstate attached to its summary judgment motion
Kim-Foraker may also prove her individual disparate treatment claims with circumstantial evidence under the three-step burden-shifting procedure set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973):
Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (citing McDonnell Douglas Corp., 411 U.S. at 802, 804, 93 S.Ct. 1817).
"The burden of establishing a prima facie case of disparate treatment is not onerous." Burdine, 450 U.S. at 253, 101 S.Ct. 1089. We assume, for this summary judgment motion, that Kim-Foraker established a prima facie case. The prima facie case gave rise to a presumption of discrimination; Allstate could rebut the presumption by producing evidence that it had a legitimate, non-discriminatory reason for terminating Kim-Foraker's employment. Id. at 253-55, 101 S.Ct. 1089. Allstate stated it terminated Kim-Foraker because she acted unprofessionally, in violation of Allstate policy. Allstate supported its proffered legitimate non-discriminatory reason with record evidence. Allstate produced written warnings citing Allstate's employment policy, "The Allstate
The burden then shifted to Kim-Foraker to produce evidence creating a triable issue of material fact that Allstate's proffered reason for her termination was a pretext for racial and national origin discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.1994). To show pretext and survive summary judgment, Kim-Foraker must submit evidence, direct or circumstantial, that: (1) casts doubt upon the legitimate reason proffered by Allstate, so a fact-finder could reasonably conclude that the reason was a fabrication; or (2) would allow the fact-finder to infer that discrimination was more likely than not a motivating or determinative cause of her termination. Fuentes, 32 F.3d at 764.
Kim-Foraker stated in her deposition that other non-Asian attorneys at Allstate behaved unprofessionally, but were not disciplined:
Def.'s Mot. for Summ. J., Ex. A (Dep. of Kim-Foraker) at 227:7-229:16. Her deposition testimony, standing alone, is insufficient evidence to cast doubt on Allstate's legitimate non-discriminatory reason and create a triable issue of whether Allstate's proffered reason is pretext. First, the other Allstate employees to whom Kim-Foraker referred are not proper comparators. "In determining whether similarly situated nonmembers of a protected class were treated more favorably than a member of the protected class, the focus is on the particular criteria or qualifications identified by the employer as the reason for the adverse action." Simpson v. Kay Jewelers, 142 F.3d 639, 647 (3d Cir.1998). Allstate alleged that Kim-Foraker was terminated for her repeated unprofessional conduct in the workplace; the progressive employment warnings issued to Kim-Foraker cite several instances of Kim-Foraker's confrontational and argumentative behavior. This is distinct conduct from isolated instances of using foul language or falling asleep in front of a judge, behavior in which certain other Allstate employees allegedly engaged.
Second, Kim-Foraker presented no evidence to support her statement that similarly situated employees outside of the protected class behaved unprofessionally, but were not disciplined. Kim-Foraker attached deposition transcripts of Turner-Hawkins and Gilmore to her third supplemental pretrial memorandum, purportedly to show Allstate's selective enforcement of its professionalism policy based on an employee's race, but her discussion of Turner-Hawkins' and Gilmore's depositions misrepresented the record. Kim-Foraker stated, "Ms. Turner-Hawkins testified even through [sic] a black attorney cussed in the hallway the behavior was allowed. Ms. Turner-Hawkins testified the black attorney was not disciplined for cussing in the hallway overheard by a judge." Pl.'s 3d Supp. Pretrial Memo. (paper no. 38) at 2. Turner-Hawkins actually testified precisely the opposite:
Id., Ex.
Kim-Foraker also stated that Ms. Gilmore testified she "was unaware of the selective enforcement depending on race at Philadelphia legal. Ms. Gilmore testified she was aware [sic] Plaintiff [sic] the only
Id., Ex. (Dep. of Gilmore) at 45:11-13, 46-8-14. There is no evidence that similarly situated employees outside the protected class were treated more favorably; Kim-Foraker cannot show pretext on this basis.
Kim-Foraker also attempted to cast doubt on Allstate's proffered reason by pointing to her supervisor's discriminatory remarks about her race and national origin. However, none of the remarks were uttered when Allstate took disciplinary action against Kim-Foraker or made the decision to terminate her employment. The Court of Appeals recognizes that although statements unconnected to the decision-making process are, standing alone, insufficient to show pretext, the statements may serve as circumstantial evidence of pretext when considered in combination with other evidence. See Roebuck v. Drexel Univ., 852 F.2d 715, 733 (3d Cir.1988).
In Roebuck, the plaintiff, a university professor, alleged racial discrimination in the denial of tenure. Id. at 725. Plaintiff relied upon, among other evidence of pretext, derogatory statements about the plaintiff's race uttered by the university president five years before plaintiff was denied tenure. Id. The court found sufficient evidence of pretext to withstand a motion for judgment as a matter of law. Id. at 734. Although the university president's "statements standing alone, occurring as they did over five years before the final denial of tenure, could not suffice to uphold a finding that Drexel [University] discriminated against [plaintiff], they do add support, in combination with the other evidence, to the ultimate conclusion." Id. at 733; see also Ezold, 983 F.2d at 545 (reversing district court's entry of summary judgment for plaintiff because derogatory statement about plaintiff's gender, uttered by a supervisor five years before adverse employment action against plaintiff, was "too remote and isolated to show independently that unlawful discrimination, rather than [defendant's] asserted reason, more likely caused the firm to deny [plaintiff] the partnership she sought").
In contrast to Roebuck, where plaintiff's evidence of pretext consisted of stray remarks plus other evidence of discrimination, Kim-Foraker only submitted her supervisor's stray remarks as evidence of pretext; she did not submit other evidence of racial and national origin discrimination. The stray remarks uttered by Kim-Foraker's supervisor, standing alone, are insufficient to create a triable issue of fact that Allstate's proffered reason for terminating Kim-Foraker was pretextual. See Roebuck, 852 F.2d at 733.
Finally, the factual dispute over whether or not attorney manager Robinson physically injured Kim-Foraker during
Likewise, the factual dispute over whether Kim-Foraker raised her voice at certain meetings with her supervisors is immaterial. To survive summary judgment, "the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act [for the asserted] non-discriminatory reasons." Id. The factual dispute whether Kim-Foraker raised her voice might show that Allstate was mistaken in its assessment, but whether or not Allstate was mistaken does not show inconsistencies or contradictions in Allstate's proffered reason for terminating her employment (her unprofessional behavior), so that a factfinder could find the proffered reason pretextual and unworthy of credence. Kim-Foraker presented no evidence creating a genuine dispute of material fact that Allstate's proffered legitimate reason for terminating her employment was a pretext for unlawful discrimination.
Nor did Kim-Foraker present evidence sufficient to satisfy a mixed motive individual disparate treatment claim. In mixed motive cases, an adverse employment action is based on both lawful and unlawful reasons. Makky v. Chertoff, 541 F.3d 205, 213 (3d Cir.2008). Title VII, amended after the Supreme Court first discussed the mixed motive framework in Price Waterhouse, provides: "[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2(m).
Kim-Foraker stated at the final pretrial conference that she believes there were multiple reasons Allstate fired her, with racial and national origin discrimination one among many reasons. This suggested Kim-Foraker might be attempting to prove her disparate treatment claims under a mixed motive framework. The mixed motive framework is typically used when instructing juries; the Court of Appeals has not stated whether it is also applicable to assessing a plaintiff's claims at summary judgment. Houser v. Carpenter Tech. Corp., 216 Fed.Appx. 263, 265 (3d Cir.2007) (declining to decide whether a
The Court of Appeals stated in Houser that, if the mixed motive framework were applicable at summary judgment, a plaintiff would need to point to evidence supporting a conclusion that an impermissible factor played a role in the adverse employment decision. Id.; see also Rouse v. II-VI Inc., ___ Fed.Appx. ___, ___, No. 08-3922, 2009 WL 1337144, at *4 (3d Cir.2009) (per curiam) (affirming grant of summary judgment for defendant because, under a mixed motive framework, plaintiff failed to present evidence that race played a role in the termination decision). Kim-Foraker failed to present record evidence, direct or circumstantial, showing that her race or national origin were motivating factors in Allstate's decision to terminate her employment. Her supervisor's discriminatory remarks were not uttered when Allstate disciplined Kim-Foraker or terminated her employment, so the stray remarks do not show that race or national origin motivated Allstate's decision. Kim-Foraker cannot prove her individual disparate claims under a direct evidence, pretext, or mixed motive framework; the claims cannot survive summary judgment.
For the reasons explained above, Allstate's motion for summary judgment will be granted. An appropriate order follows.
Def.'s Mot. for Summ. J., Ex. D (Unacceptable Behavior Notification).
Def.'s Mot. for Summ. J., Ex. F (Job in Jeopardy Notification).
Prior to filing her federal employment discrimination action, Kim-Foraker commenced a personal injury action in Delaware state court to recover for injuries allegedly sustained in a car accident on May 25, 2007. Def.'s Dec. 22, 2010 Letter to the Court (paper no. 39), Ex. A (Delaware complaint). In the Delaware state court action, Kim-Foraker alleges that the May 25, 2007 car accident reaggravated injuries she allegedly sustained during the March 1, 2006 incident with Allstate supervisor Robinson. Final Pretrial Conf. Tr. (paper no. 40) at 26:13-24. Kim-Foraker proffered expert medical testimony in the Delaware state court action stating that, as a result of the car accident, she was disabled and unable to work from September, 2007 to March, 2010. Def.'s Dec. 22, 2010 Letter to the Court (paper no. 39), Ex. E (Dr. Fink letter).
Kim-Foraker's representations that she is entitled to back pay from September 6, 2006 to the present, and her representations in Delaware state court that she was unable to work from September, 2007 to March, 2010, are clearly inconsistent. Kim-Foraker is not entitled to back pay for the period of time she was unable to work. The court, troubled by plaintiff's inconsistent representations, considered applying the doctrine of judicial estoppel. However, because the Delaware state court action was dismissed with prejudice, the Delaware state court never accepted or adopted Kim-Foraker's representation that she was disabled and unable to work, so the bad faith element of judicial estoppel is not satisfied. See Montrose Med. Group Participating Savings Plan v. Bulger, 243 F.3d 773, 782 (3d Cir.2001) (entry of summary judgment against plaintiff on judicial estoppel grounds constituted an abuse of discretion because the earlier court had not adopted or accepted plaintiff's initial claim, on which plaintiff later changed position, so the bad faith criterion of judicial estoppel was not satisfied).
