SHANAHAN v. ETHAN ALLEN RETAIL, INC.

Filing 27

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 9/8/21. 9/8/21 ENTERED AND COPIES E-MAILED.(kw, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TAMARA SHANAHAN
v.
ETHAN ALLEN RETAIL, INC., KATE
SAVINO, and ROBERT KALINA

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CIVIL ACTION

NO. 21-595

MEMORANDUM OPINION
Savage, J.

September 8, 2021

Defendant Ethan Allen Retail, Inc. terminated plaintiff Tamara Shanahan’s
employment in January 2020 after she had taken medical leave following foot surgery.
Shanahan then brought this employment discrimination case claiming that Ethan Allen’s
decision to terminate her rather than allowing her to return to work was motivated by her
age, her disability following surgery and her taking medical leave. She also claims the
defendants retaliated against her for complaining of age discrimination and harassment.
Moving to dismiss for lack of personal jurisdiction under Federal Rule of Civil
Procedure 12(b)(2), defendant Robert Kalina, Ethan Allen’s compensation and benefits
manager working out of Connecticut, contends that he does not have sufficient contacts
with the Commonwealth of Pennsylvania and has not purposefully directed any conduct
at Pennsylvania. Shanahan counters that Kalina, who is responsible for overseeing
employees in Pennsylvania where she worked for Ethan Allen, specifically directed his
discriminatory activities towards this forum.
We conclude we can exercise personal jurisdiction over Kalina because his actions
were directed at Pennsylvania and the focal point of the harm caused by his actions was
Pennsylvania where Shanahan worked. Therefore, we shall deny his motion to dismiss.

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Shanahan is 62 years old and worked as a design consultant for Ethan Allen from
2008 until January 2020.1 She initially worked for Ethan Allen in Oklahoma City before
transferring to its Chadds Ford, Pennsylvania store in 2014.2 She lives across the state
line in Wilmington, Delaware.3
Heeding her physician’s advice, Shanahan underwent surgery on July 5, 2019 and
took post-operative medical leave.4 She had hoped to return to work on September 26,
2019.5 However, on September 18, 2019, her physician directed that she remain out
through November 11, 2019.6 Accordingly, Shanahan requested an extension of her
medical leave through November 11.7
By letter dated October 7, 2019, Kalina informed Shanahan that her job protection
under the FMLA ended on September 27, 2019, and that Ethan Allen would no longer
hold her position open.8 He stated that she was welcome to apply for available positions
once she was cleared to return to work.9

1

Am. Compl. at ¶¶ 9, 26, 32, 151 (ECF No. 17).

2

Id. at ¶¶ 31, 36.

3

Id. at ¶ 9.

4

Id. at ¶¶ 29, 37–41.

5

Id. at ¶ 42.

6

Id. at ¶ 43.

7

Id. at ¶ 44.

8

Id. at ¶ 47; Decl. of Robert Kalina in Supp. of Def.’s Mot. to Dism. at ¶ 3 (ECF No. 22).

9

Am. Compl. at ¶ 48.

2

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In response, Shanahan asked her physician for permission to return to work
sooner.10

He

released

her to

return

on

November

1,

2019,

with

certain

accommodations.11
Ethan Allen resisted her attempt to return to work in November, claiming that they
were entitled to replace her because her FMLA protection had ended.12 Ethan Allen
eventually agreed to her returning, but with a limited version of the requested
accommodations.13 Upon her return, Ethan Allen presented her with two agreements that
changed her working hours, added new duties and responsibilities that included heavy
physical labor, made her personally responsible for customers’ failure to pay, increased
her sales quotas, provided her accommodations only through December 1, 2019 and took
other actions to intimidate her into leaving her job.14 When Shanahan objected to the new
terms of her employment, she was told she had to sign on the spot.15 Feeling that she
had no choice, she signed the agreements.16
Shanahan

raised

concerns

about

the

agreements

and

Ethan

Allen’s

discriminatory, harassing and retaliatory actions several times with her supervisor.17 After
her first few requests were ignored, Shanahan met with her supervisor and Kate Savino,

10

Id. at ¶ 52.

11

Id. at ¶ 53.

12

Id. at ¶¶ 54–58.

13

Id. at ¶ 59.

14

Id. at ¶¶ 60–72, 76–80, 88, 94–96, 98, 100–103, 108–109.

15

Id. at ¶¶ 71, 92–93.

16

Id. at ¶¶ 72, 94, 108–109.

17

Id. at ¶¶ 73, 105–107.

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Ethan Allen’s former managing director, on November 7, 2019.18 She did not receive any
meaningful explanation for Ethan Allen’s actions.19 She was told only that it was “company
policy,” they “will work with [her],” and they would “evaluate” the situation at the end of the
month.20 They also suggested that she go back on leave if she thought the work was too
hard for her.21
Shanahan experienced significant pain in her foot after her early return to work.22
Her physician recommended she go on medical leave again until he re-evaluated her
condition in January 2020.23 Shanahan informed Savino that she was taking medical
leave until January 8, 2020.24 Ethan Allen responded by informing her that her position
would not be held open.25
On January 2, 2020, despite having advised Savino that she was planning to return
to work on January 8, Shanahan received an email informing her that her position had
been filled and that her benefits would cease after January 18, 2020.26 On January 7,
2020, Shanahan’s physician cleared her to return to work.27 She immediately emailed

18

Id. at ¶¶ 18, 73, 113, 115.

19

Id. at ¶ 116.

20

Id. at ¶¶ 116–129.

21

Id. at ¶¶ 132, 135.

22

Id. at ¶ 136.

23

Id. at ¶¶ 136–137.

24

Id. at ¶ 138.

25

Id. at ¶ 139.

26

Id. at ¶¶ 141–142.

27

Id. at ¶ 144.

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Kalina, attaching her doctor’s note.28 Kalina responded that she could not return because
she had not been cleared.29 She was later notified by another human resources employee
that her employment had been terminated as of January 8, 2020.30
Although she continued to dispute Ethan Allen’s actions, Shanahan asked Kalina
how to apply for an open position.31 On January 8, 2020, Kalina emailed her, thanking
her for acknowledging that Ethan Allen was not holding her job open and providing a link
to view job postings.32
Shanahan later learned that her replacement was a former poor performer at Ethan
Allen, who was younger and not disabled.33 She eventually stopped appearing for work
and quit.34
Shanahan brought this action against Ethan Allen, Savino, and Kalina for
discrimination under the Age Discrimination in Employment Act (“ADEA”), the Americans
with Disabilities Act (“ADA”), the Family Medical Leave Act (“FMLA”) and the
Pennsylvania Human Relations Act (“PHRA”). Kalina has moved to dismiss for lack of
personal jurisdiction. He claims that he is a Connecticut resident and had limited contact

Id. In her January 7, 2020 email, Shanahan wrote: “As planned I will be returning to work on
January 8. As you know from previous emails, I had advised Kate on November 21st, and Bob Kalina on
December 9th, that I would be able to return on this date.” Def.’s Mot. to Dism. Ex. 2 at 2.
28

29

Am. Compl. at ¶ 144.

30

Id. at ¶ 151.

31

Id. at ¶ 148.

32

Id. at ¶¶ 149–150.

33

Id. at ¶¶ 152, 155.

34

Id. at ¶¶ 153–154.

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with Pennsylvania. He contends these contacts are insufficient to support personal
jurisdiction.35
Personal Jurisdiction Standards
Once a defendant challenges personal jurisdiction, the plaintiff bears the burden
of proving, by a preponderance of the evidence, facts establishing a basis for the exercise
of jurisdiction. Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 330, 336 (3d Cir.
2009) (citing Carteret Sav. Bank, F.A. v. Shushan, 954 F.2d 141, 146 (3d Cir. 1992)). In
considering a motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2), as
we do with a motion to dismiss for failure to state a claim under Rule 12(b)(6), we accept
as true the plaintiff’s allegations and draw all reasonable inferences in favor of the plaintiff.
Shuker v. Smith & Nephew, PLC, 885 F.3d 760, 780 (3d Cir. 2018) (citing O’Connor v.
Sandy Lane Hotel Co., 496 F.3d 312, 316 (3d Cir. 2007)). However, unlike with Rule
12(b)(6), the scope of review under Rule 12(b)(2) is not limited to the face of the
pleadings. Patterson by Patterson v. FBI, 893 F.2d 595, 603–04 (3d Cir. 1990) (citation
omitted). Once a defendant challenges personal jurisdiction, “the plaintiff must ‘prove by
affidavits or other competent evidence that jurisdiction is proper.’” Metcalfe, 566 F.3d at
330 (quoting Dayhoff Inc. v. H.J. Heinz Co., 86 F.3d 1287, 1302 (3d Cir. 1996)).
If there is no evidentiary hearing, the plaintiff need only establish a prima facie
case of personal jurisdiction. Shuker, 885 F.3d at 780. To determine whether the plaintiff
has made this prima facie showing, we assume all factual allegations in the affidavits and

35

Def.’s Mot. to Dism. at 1; Def.’s Reply at 1 (ECF No. 26).
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other evidence submitted to be true and construe all factual disputes in the plaintiff’s favor.
Metcalfe, 566 F.3d at 331, 333.36
There are two types of personal jurisdiction, general and specific. The focus of
general jurisdiction is on the relationship between the defendant and the forum state, not
on the relationship of the claims to the forum. Bristol-Myers Squibb Co. v. Superior Court
of California, San Francisco Cty., 137 S. Ct. 1773, 1780 (2017) (citing Goodyear Dunlop
Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). The specific jurisdiction
inquiry focuses on the relationship of the litigation to the defendant’s contacts with the
forum. Walden v. Fiore, 571 U.S. 277, 284 (2014).
Before exercising personal jurisdiction over a nonresident, the court must conduct
a two-step analysis. Eurofins Pharma US Holdings v. BioAlliance Pharma SA, 623 F.3d
147, 155 (3d Cir. 2010). First, there must be a statutory basis under the law of the forum
state for exercising jurisdiction. Walden, 571 U.S. at 283 (citing Daimler AG v. Bowman,
571 U.S. 117, 125 (2014)); FED. R. CIV. P. 4(k)(1)(A). Second, the nonresident must have
sufficient minimum contacts with the forum state to satisfy constitutional due process.
BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549, 1558 (2017).
Statutory Basis for Jurisdiction
Pennsylvania’s long-arm statute supplies several bases for personal jurisdiction
over a nonresident individual. 42 Pa. Cons. Stat. Ann. §§ 5301, 5322; Pennzoil Prods.
Co. v. Colelli & Assocs., Inc., 149 F.3d 197, 200 & n.1 (3d Cir. 1998). Section 5301

36 If the alleged jurisdictional facts remain in dispute later in the litigation, we are free to “revisit[]”
the jurisdictional question. Shuker, 885 F.3d at 781 (citing Metcalfe, 566 F.3d at 331, 336). At this later
stage, instead of construing the evidence in the plaintiff’s favor, we consider the evidence presented by
both parties and decide the factual disputes in light of the plaintiff’s burden to establish jurisdiction by a
preponderance of the evidence. Metcalfe, 566 F.3d at 331, 336 (citing Carteret, 954 F.2d at 142 n.1).

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provides for general jurisdiction over an individual defendant who was domiciled or
present in the state at the time of service of process, or who consents to suit. 42 Pa.
Cons. Stat. Ann. § 5301(a)(1)(i)–(iii). When personal jurisdiction is premised on this
section of the Pennsylvania long-arm statute, any cause of action may be asserted
against the defendant whether or not it arises from acts forming the basis of jurisdiction.
Id. § 5301(b).
Section 5322 enumerates activities and contacts in Pennsylvania that provide a
basis for exercising specific jurisdiction over a non-resident defendant. The list includes
causing harm or tortious injury in Pennsylvania by an act or omission in or outside
Pennsylvania. Id. § 5322(a)(3)–(4). Pertinent to this case is the “tort out/harm in” provision
which confers specific jurisdiction over anyone who “[c]aus[es] harm or tortious injury in
th[e] Commonwealth by an act or omission outside th[e] Commonwealth.” Id. §
5322(a)(4); Pennzoil, 149 F.3d at 200 n.1. Additionally, section 5322(b) provides that
specific jurisdiction extends “to all persons who are not within the scope of section 5301
. . . to the fullest extent allowed under the Constitution of the United States and may be
based on the most minimum contact with this Commonwealth allowed under the
Constitution of the United States.” 42 Pa. Cons. Stat. Ann. § 5322(b). Under this section,
only causes of action arising from the defendant’s contacts with the forum may be
asserted. Id. § 5322(c).
Minimum Contacts with Pennsylvania
A statutory basis for the exercise of personal jurisdiction alone is insufficient. The
exercise of jurisdiction must also be consistent with the limits imposed by the Due Process
Clause of the Fourteenth Amendment. Walden, 571 U.S.at 283 (citing Daimler, 571 U.S.

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at 125). To satisfy this test, the plaintiff must establish “certain minimum contacts”
between the nonresident defendant and the forum so that the exercise of jurisdiction will
“not offend ‘traditional notions of fair play and substantial justice.’” Tyrrell, 137 S. Ct. at
1558 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
General Jurisdiction
Kalina does not live in Pennsylvania, was not served with process here, and has
not consented to jurisdiction. Therefore, there is no basis for the exercise of general
jurisdiction under Pennsylvania’s long-arm statute.
Specific Jurisdiction
Specific jurisdiction arises when the cause of action is related to or arises out of
the defendant’s contacts with the forum and the plaintiff’s injury in the forum is related to
those contacts. Id. (quoting Daimler, 571 U.S. at 127). The specific jurisdiction inquiry
“focuses on the relationship among the defendant, the forum, and the litigation.” Walden,
571 U.S. at 283–84 (quoting Keeton v. Hustler Mag., Inc., 465 U.S. 770, 775 (1984)
(internal quotations omitted)).
The “traditional test” for the exercise of specific jurisdiction over a nonresident
defendant has three requirements. First, the defendant’s conduct must have been
purposefully directed at the forum state, resulting in contacts with the forum. J. McIntyre
Mach., Ltd. v. Nicastro, 564 U.S. 873, 881, 883 (2011) (minimum contacts requires
“contact with and activity directed at” the forum state) (citations omitted). Second, the
plaintiff’s claim must arise out of or relate to those contacts. Walden, 571 U.S. at 284
(citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)). Third, if the first two
requirements are met, the court considers whether the exercise of jurisdiction otherwise

9

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comports with “fair play and substantial justice.” D’Jamoos ex rel. Estate of Weingeroff v.
Pilatus Aircraft Ltd., 566 F.3d 94, 102 (3d Cir. 2009) (quoting Burger King, 471 U.S. at
476).
In a case of an intentional tort, a defendant may still be subject to jurisdiction under
the Calder “effects test” even though it lacks sufficient contacts with the forum to satisfy
due process. See Calder v. Jones, 465 U.S. 783 (1984). Calder recognizes that, in certain
circumstances, the relationship among the defendant, the forum, the plaintiff and the
intentional tort may render a defendant’s otherwise insufficient contacts with the forum
under the “traditional test” sufficient. IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 260,
265 (3d Cir. 1998).
In IMO Industries, the Third Circuit articulated the Calder “effects test.” Id. at 256,
265–66. The plaintiff must show the following:
(1) The defendant committed an intentional tort;
(2) The plaintiff felt the brunt of the harm [caused by that tort]
in the forum such that the forum can be said to be the focal
point of the harm suffered by the plaintiff as a result of that
tort; [and]
(3) The defendant expressly aimed his tortious conduct at the
forum such that the forum can be said to be the focal point of
the tortious activity.
Id.
To establish minimum contacts under the Calder “effects test,” the forum must
have been the focal point of both the tortious conduct and the harm suffered. Walden,
571 U.S. at 287 (quoting Calder, 465 U.S. at 789). The defendant must have expressly
aimed his tortious activity at the forum, knowing that the effects of its conduct were likely
to be felt by the plaintiff there and making the forum the focal point of its conduct.
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The third prong of this test “can only be satisfied if the plaintiff can point to contacts
which demonstrate that the defendant expressly aimed its tortious conduct at the forum.”
IMO Indus., 155 F.3d at 265 (emphasis in original). It is not enough that the defendant’s
conduct affects a plaintiff who is connected to the forum state, or that the plaintiff
experienced or felt the injury or effect of the defendant’s conduct in the forum. Walden,
571 U.S. at 290 (“mere injury to a forum resident is not a sufficient connection to the
forum” to satisfy Calder); IMO Indus., 155 F.3d at 263. The “effects” of the tortious conduct
must connect the defendant to the forum, not just to the plaintiff. Walden, 571 U.S. at 287.
“The proper question is . . . whether the defendant’s conduct connects him to the forum
in a meaningful way.” Id. at 290. Through his intentional conduct, “it is the defendant, not
the plaintiff . . . , who must create contacts with the forum State.” Id. at 286, 291. Thus, in
addition to showing that the defendant knew the plaintiff would feel the brunt of the harm
caused by its tortious conduct in the forum, the plaintiff must point to specific conduct by
the defendant that was intentionally targeted at and focused on the forum. Id. at 265–66.
Analysis
Kalina contends that there is no basis for general or specific personal jurisdiction
over him.37 He is a Connecticut resident who neither physically works nor owns property
in Pennsylvania.38 His emails and letters to Shanahan regarding her FMLA leave,
accommodations and termination were read in Delaware where Shanahan lives and
spent her medical leave.39 He claims there are no allegations that Kalina ever visited

37

Def.’s Mot. to Dism. at 1.

38

Id. at 1, 7.

Id. at 7–8, 11–12; Def.’s Reply at 3. Kalina assumes Shanahan received, opened, and read his
emails in Delaware. His emails were not necessarily directed there. Shanahan could have received,
39

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Pennsylvania, directed his communications at Pennsylvania or expressly aimed tortious
conduct at Pennsylvania.40
Shanahan counters that Kalina oversees Ethan Allen employees working in
Pennsylvania.41 She contends that Kalina specifically directed his activities towards her
as an employee at the Chadds Ford, Pennsylvania store, and routinely interacted with
other Pennsylvania Ethan Allen employees there.42 According to Shanahan, because
Pennsylvania is the state where she worked and where she sought to return to her
employment, Pennsylvania is the focal point of the tortious activity and the harm she
suffered.43
The Third Circuit instructs that we should first consider the third Calder element.
Marten v. Godwin, 499 F.3d 290, 297 (3d Cir. 2007) (citing IMO Indus., 155 F.3d at 266)
(“Only if the ‘expressly aimed’ element of the effects test is met need we consider the
other two elements.”). Kalina expressly aimed his alleged discriminatory and retaliatory
conduct at Pennsylvania.
Shanahan may have received Kalina’s letters and emails in Delaware. But, that is
not dispositive. The communications related to her employment in Pennsylvania,
concerned her medical leave from that employment, and her ability to return to work or
apply for new jobs there. It does not matter than Shanahan lives in Delaware. What

opened, and read Kalina’s emails anywhere, including Pennsylvania. In short, the emails were not sent
to any particular state, but to Shanahan where ever she was at that time.
40

Def.’s Mot. to Dism. at 1, 8, 11–12.

41

Pl.’s Resp. at 1 (ECF No. 23).

42

Id. at 1, 6, 9, 11–12.

43

Id. at 12–13.

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matters is where she worked—Pennsylvania. That was the focal point of the harm. That
is where Kalina’s actions were directed. He aimed to terminate Shanahan’s employment
there.
The first two Calder elements are also met. With respect to the first element that
the defendant committed an intentional tort, Shanahan’s causes of actions are predicated
on intentional conduct. Employment discrimination and retaliation causes of actions are
treated as intentional torts for purposes of the Calder test.44 Therefore, we conclude that
Shanahan’s employment discrimination claims are intentional torts for purposes of the
Calder analysis.
With respect to the second element that the plaintiff felt the brunt of the harm in
the forum, Shanahan felt the brunt of the harm in Pennsylvania. Though she lived in
Delaware, she was employed in Pennsylvania. The alleged discriminatory and retaliatory
actions were directed against her as an employee in Pennsylvania. Kalina’s letters and
emails may have been read in Delaware, but they related to her employment in
Pennsylvania—the focal point of the harm. See Wright, 882 F. Supp. at 406

44

Courts in the Third Circuit have applied the Calder effects test to cases involving employment
discrimination claims. See Tann v. U.S. Steel Corp., No. 15-3, 2015 WL 3609913, at *10 (W.D. Pa. June 8,
2015) (finding the defendants “are alleged to have committed an intentional tort which Plaintiff (a
Pennsylvania resident) felt the brunt of in Pennsylvania and they did so while or after communicating with
[the other defendants] in Pennsylvania” in a case alleging race and religious discrimination, hostile work
environment, and retaliation under Title VII and the PHRA); Jaipaul v. Pliant Corp., No. 07-4031, 2008 WL
2746291, at *4 (E.D. Pa. July 14, 2008) (applying Calder to employment discrimination claims brought
under Title VII and other civil rights statutes); Corrales Martin v. Clemson Univ., No. 07-536, 2007 WL
4531028, at *8 (E.D. Pa. Dec. 20, 2007) (same); Wright v. Xerox Corp., 882 F. Supp. 399, 406 (D.N.J.
1995) (applying Calder in a case brought under New Jersey’s Law Against Discrimination).
Courts in other Circuits have similarly considered “statutory, civil rights tort[s]” as torts for purposes
of the due process arm of the personal jurisdiction analysis. See, e.g., Barclay v. Hughes, 462 F. Supp. 2d
314, 317 (D. Conn. 2006) (noting other cases where courts “assumed, without discussion, that a § 1983 or
other federal statutory violation constitutes a tort for purposes of a state’s long-arm statute.”) (citations
omitted); Scott v. Nat’l Ass’n for Stock Car Racing, Inc., No. 06-6029, 2008 WL 217049, at *6 (S.D.N.Y.
Jan. 17, 2008) (“Allegations of § 1981 and § 1985 violations are properly understood as ‘torts’ for the
purpose of personal jurisdiction analysis.”).

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(“Discrimination by an out-of-state employer against an employee in this state is an act
directed at this state. The harm is felt here[.]”).
Shanahan has satisfied the Calder effects test. Because we find that we can
exercise personal jurisdiction over Kalina under the Calder test, we need not consider
whether we have specific jurisdiction under the traditional test.
Conclusion
Shanahan has sufficiently alleged that Kalina expressly aimed his tortious activity
at Pennsylvania, and that she felt the brunt of the harm in Pennsylvania. Therefore,
because we may exercise personal jurisdiction over Kalina under the Calder effects test,
we shall deny Kalina’s motion to dismiss.

14