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Boone-Coleman v. SCA, Inc.

United States District Court, M.D. Alabama, Eastern Division

October 18, 2019

KENDRA BOONE-COLEMAN, Plaintiff,
v.
SCA, INC., et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          EMILY C. MARKS CHIEF UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         On September 4, 2018, Kendra Boone-Coleman (“Plaintiff”) filed suit against SCA, Inc. and Yeon Jin Kim (“Defendants”) for unlawful discrimination in connection with her employment. (Doc. 1). The Plaintiff brings four causes of action against SCA, Inc.: (1) Title VII national origin discrimination (disparate pay); (2) Title VII national origin discrimination (disparate terms and conditions of employment); (3) constructive discharge; and (4) 42 U.S.C. §1981 race discrimination. The Plaintiff also brings claims against her former supervisor, Yeon Jin Kim, for constructive discharge and race discrimination under §1981.

         The Plaintiff's complaint contains the following factual allegations: in November of 2014, the Plaintiff, an African American female, began employment with SCA, Inc. as an “accounting specialist.” Defendant Kim, a Korean male, was SCA, Inc.'s Chief Financial Officer during a portion of the relevant time period and oversaw their accounting department. During her three-year tenure with SCA, Inc., the Plaintiff was the only African American and non-Korean employee in the accounting department. Moreover, during this time, the Plaintiff asserts that the Defendants treated her less favorably than other Korean, non-African American employees in the terms and conditions of her employment. Specifically, the Plaintiff contends that the Defendants denied her proper training, imposed a heavier workload compared to other employees in the accounting department, and paid her less than similarly situated employees.

         With respect to a heavier workload, the Plaintiff asserts that when Won Lee, former assistant accounting manager for SCA, Inc., left the company, some of his duties were shifted to the Plaintiff instead of being shifted to Lee's replacement. Further, the Plaintiff alleges that when her immediate supervisor, Yeong Yun Kwon, went on maternity leave in late 2015, she assumed many of Kwon's responsibilities and continued to perform those responsibilities when Kwon returned from leave.

         Regarding pay disparities, the Plaintiff alleges that SCA, Inc. paid other similarly situated Korean, non-black accounting specialists more than her despite the similarly situated employees having less accounting experience than the Plaintiff.[1] Moreover, once the Plaintiff earned her accounting degree after some period of employment with SCA, Inc., she asserts that the company failed to equalize her pay in relation to other coworkers in the accounting department. The Plaintiff contends that on several occasions she informed SCA, Inc. management about her heavier workload and pay disparities.

         The Plaintiff asserts that she suffered discrimination that was so hostile and abusive that she was constructively discharged in December 2017. Thereafter, the Plaintiff filed a complaint with the Equal Employment Opportunity Commission (“EEOC”), and this suit followed.

         On October 3, 2018, Defendant SCA, Inc. filed a Partial Motion to Dismiss the Plaintiff's constructive discharge and Title VII race discrimination claims.[2] (Doc. 7). In the alternate, Defendant SCA, Inc. moves for a Motion for a More Definite Statement. (Id.). Similarly, on October 9, 2018, Defendant Kim filed a motion to dismiss the Plaintiff's constructive discharge claim. (Doc. 10). Additionally, Defendant Kim moves, pursuant to FED.R.CIV.P. 12(b)(5), to dismiss the Plaintiff's complaint for insufficient service of process. (Id.). For the reasons that follow, the Defendants' motions are due to be granted in part and denied in part.

         II. INSUFFICIENT SERVICE OF PROCESS

         Defendant Kim moves to dismiss the Plaintiff's complaint pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure. Specifically, Defendant Kim asserts that in May of 2018, he moved to South Korea and did not reside in the United States when the Plaintiff filed this lawsuit. (Doc. 10 at 20).[3] Further, Defendant Kim contends that because he “is a resident of South Korea and South Korea is a member of the Hague Convention, [he] must be served in compliance with the Hague Convention or some other method permitted by FED.R.CIV.P 4(f).” (Id. at 1-2). According to Defendant Kim, the Plaintiff has failed to “properly serve [him] by utilizing any method for service described in Rule 4(f).” (Id. at 4).

         The Plaintiff argues that she did properly serve Defendant Kim because “he is still employed with [Defendant SCA, Inc.] and received the complaint from his counsel.” (Doc. 15 at 10). Additionally, the Plaintiff appears to argue that she properly served Defendant Kim by mail pursuant to Article 10(a) of the Hague Convention. The Court disagrees.

         “Service of process is a jurisdictional requirement: a court lacks jurisdiction over the person of a defendant when that defendant has not been served.” Hemispherx Biopharma, Inc. v. Johannesburg Consol. Investments, 553 F.3d 1351, 1360 (11th Cir. 2008) (citations omitted). Moreover, “when the defendant contests the sufficiency of service, the plaintiff bears the burden of proving proper service.” Coleman v. Hwashin America Corp., 2017 WL 4682053, at *2 (M.D. Ala. 2017).

         Rule 4(f) of the Federal Rules of Civil Procedure governs service of process on an individual in a foreign country. In relevant part, the rule provides that a foreign individual may be served “by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents” or “by other means not prohibited by international agreement.” FED.R.CIV.P. 4(f)(1) and (3). Moreover, “compliance with the [Hague] Convention is mandatory in all cases to which it applies.” Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 705 (1988). “Both the United States and South Korea are parties to the Hague Convention.” Backjoy Orthotics, LLC v. Forvic International Inc., 2016 WL 7664290, at *4 (M.D. Fla. 2016); Status Table, Hague Conference on Private Int'l Law (October 2, 2019), http://www.hcch.net/indexen.php?act=conventions.status&cid=17.

         The Hague Convention allows a plaintiff to effect service of process on a foreign individual in several ways. At issue in this case is Article 10(a) of the Convention, which states “[p]rovided the State of destination does not object, the present Convention shall not interfere with . . . the freedom to send judicial documents, by postal channels, directly to persons abroad.” Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters art. 10, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638 (emphasis added). The Supreme Court of the United States interpreted this language to mean that Article 10(a) permits service by mail “if two conditions are met: first, ...


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