Colgan Air v. Human Rights Com'n

• Decision Date: 25 October 2007
• Docket Number: No. 33355.,33355.
• Citation: 656 S.E.2d 33
• Parties: COLGAN AIR, INC., Appellant, v. WEST VIRGINIA HUMAN RIGHTS COMMISSION and Rao Zahid Khan, Appellees.
• Court: West Virginia Supreme Court

656 S.E.2d 33

COLGAN AIR, INC., Appellant, v. WEST VIRGINIA HUMAN RIGHTS COMMISSION and Rao Zahid Khan, Appellees.

No. 33355.

Supreme Court of Appeals of West Virginia.

Submitted September 18, 2007.

Decided October 25, 2007.

Concurring in part and dissenting in part Opinion of Justice Albright November 21, 2007.

Concurring in part and dissenting in part Opinion of Justice Starcher December 6, 2007.

Syllabus by the Court

1. "Where an appeal from an order issued by the West Virginia Human Rights Commission is brought directly to the West Virginia Supreme Court of Appeals, pursuant to W. Va.Code § 5-11-11 (1989), this Court will apply the same standard of review that is applied to Human Rights Commission orders appealed to a circuit court." Syllabus point 1, Cobb v. West Virginia Human Rights Commission, 217 W.Va. 761, 619 S.E.2d 274 (2005).

2. "The aggravated nature of discriminatory conduct, together with its frequency and severity, are factors to be considered in assessing the efficacy of an employer's response to such conduct. Instances of aggravated discriminatory conduct in the workplace, where words or actions on their face clearly denigrate another human being on the basis of race, ancestry, gender, or other unlawful classification, and which are clearly unacceptable in a civilized society, are unlawful under the West Virginia Human Rights Act, West Virginia Code §§ 5-11-1 to-20 (1999), and in violation of the public policy of this State. When such instances of aggravated discriminatory conduct occur, the employer must take swift and decisive action to eliminate such conduct from the workplace." Syllabus point 3, Fairmont Specialty Services v. West Virginia Human Rights Commission, 206 W.Va. 86, 522 S.E.2d 180(1999).

3. "W. Va.Code [§] 5-11-9(7)(C) (1992), prohibits an employer or other person from retaliating against any individual for expressing opposition to a practice that he or she reasonably and in good faith believes violates the provisions of the West Virginia Human Rights Act." Syllabus point 11, Hanlon v. Chambers, 195 W.Va. 99, 464 S.E.2d 741 (1995).

4. "`In an action to redress an unlawful retaliatory discharge under the West Virginia Human Rights Act, W. Va.Code, 5-11-1, et seq., as amended, the burden is upon the complainant to prove by a preponderance of the evidence (1) that the complainant engaged in protected activity, (2) that complainant's employer was aware of the protected activities, (3) that complainant was subsequently discharged and (absent other evidence tending to establish a retaliatory motivation), (4) that complainant's discharge followed his or her protected activities within such period of time that the court can infer retaliatory motivation. Syl.pt. 4. Frank's Shoe Store v. West Virginia Human Rights Commission, 179 W.Va. 53, 365 S.E.2d 251 (1986). Syl. pt. 1, Brammer v. Human Rights Commission, 183 W.Va. 108, 394 S.E.2d 340 (1990). Syllabus Point 10, Hanlon v. Chambers, 195 W.Va. 99, 464 S.E.2d 741 (1995).'" Syllabus point 6, Conrad v. ARA Szabo, 198 W.Va. 362, 480 S.E.2d 801 (1996).

5. "`When an employee makes a prima facie case of discrimination, the burden then shifts to the employer to prove a legitimate, nonpretextual, and nonretaliatory reason for the discharge. In rebuttal, the employee can then offer evidence that the employer's proffered reason for the discharge is merely a pretext for the discriminatory act.' Syllabus Point 2, Powell v. Wyoming Cablevision, Inc., 184 W.Va. 700, 403 S.E.2d 717 (1991)." Syllabus point 4, Birthisel v. Tri-Cities Health Services Corp., 188 W.Va. 371, 424 S.E.2d 606 (1992).

Brian J. Moore, Jackson Kelly P.L.L.C., Charleston, WV, Mark A. Dombroff, Shaleeza Altaf, McLean, VA, Attorneys for Appellant, Colgan Air, Inc.

Darrell V. McGraw, Jr., Attorney General, Paul R. Sheridan, Deputy Attorney General, Attorneys for Appellee, West Virginia Human Rights Commission.

Dwight J. Staples, Henderson, Henderson & Staples, L.C., Huntington, WV, Attorneys for Appellee, Rao Zahid Khan.

PER CURIAM.

The appellant, Colgan Air, Inc. (hereinafter "Colgan"), appeals from an adverse ruling issued by the West Virginia Human Rights Commission (hereinafter "HRC") on December 22, 2006. Such order reversed the February 22, 2006, order of the administrative law judge (hereinafter "ALJ"). The order appealed from found Colgan liable to Rao Zahid Khan (hereinafter "Mr. Khan") for harassment and discrimination, and further found that Mr. Khan's subsequent discharge and failure to retrain was in retaliation for his earlier complaints of discrimination. On appeal to this Court, Colgan argues that such order was in error and lacked support, and that the order by the ALJ, which found no discrimination, had substantial support and should have been affirmed by the HRC. Based upon the parties' arguments,¹ the record designated for our consideration, and the pertinent authorities, we reverse the order of the HRC. In so doing, we find that the HRC erred in holding the employer, Colgan, liable for damages to Mr. Khan for harassment and discrimination.

I. FACTUAL AND PROCEDURAL HISTORY

Mr. Khan began work with Colgan in August 2000 as a pilot trainee. He successfully completed his initial proficiency check on September 21, 2000, and his initial operating experience on September 30, 2000, as a First Officer. Mr. Khan went on the flight line in October 2000, with the hopes of becoming a Captain.

During his employment with Colgan, Mr. Khan was subjected to inappropriate treatment by some of his coworkers. Specifically, fellow employees Captain Riley, Captain Galbrath,² and Captain Heuston repeatedly referenced Mr. Khan's race, religion, and intelligence.³ Mr. Khan was the victim of labels such as "sand n* * * *r," "rag head," and "camel jockey." He was also subjected to repeated comments about being a terrorist. These fellow employees evidenced a general dislike of Mr. Khan, and displayed their feelings through inappropriate remarks about Mr. Khan's wife, his flying skills, and by threatening that they would do everything in their power to get him fired, including making him fail his proficiency test.

Mr. Khan and another coworker complained about the treatment of Mr. Khan. The complaints were made to Captain Mayers, who was the Lead Pilot⁴ for Colgan at the Huntington, West Virginia, crew base. Most members of the crew knew of the treatment to which Mr. Khan had been subjected. Captain Mayers admits to knowledge of the behavior by Captains Riley and Heuston, and that each time he learned of inappropriate treatment towards Mr. Khan, he would tell Captains Riley and Heuston to "knock it off" as he deemed their behavior dishonorable and unprofessional. Captain Mayers did not notify anyone at headquarters in Manassas, Virginia, regarding the conduct.

In June 2001, Captain Riley made offensive comments to Mr. Khan about Mr. Khan's wife. Mr. Khan was so upset that he traveled to headquarters in Manassas, Virginia, to talk to someone about the harassment. In Manassas, Mr. Khan spoke to Ms. Finnigan, Vice President for Personnel and Marketing, about the treatment he received from Captain Riley. Ms. Finnigan then spoke to Captain Riley on June 20, 2001, in Manassas, Virginia, regarding Mr. Khan's complaints of discriminatory comments. Captain Riley denied making any discriminatory comments. Ms. Finnigan proceeded to retrain Mr. Riley with respect to the sexual harassment and discrimination policy. The Chief Pilot, also at Manassas, Virginia, talked to Captain Riley about what is considered professional behavior and wrote a letter of reprimand dated June 20, 2001. Captain Riley was told that if any other incidents occurred, he would be severely disciplined, including possible termination. Ms. Finnigan then contacted Captain Mayers, Lead Pilot, in Huntington, West Virginia, regarding the allegations. Captain Mayers admitted that he knew of the personality conflicts, but stated that he was not aware it was due to "race, religion or any kind of harassment or discrimination issue."

Thereafter, on July 9, 2001, a hand-drawn cartoon was posted that was highly offensive. The cartoon depicted an airline with the caption "COLGAN AIR NOW HIRING PUNJAB PILOTS!!!" Further, it stated, "NOTE: PUNJAB AIRLINES NOT RESPONSIBLE FOR LOSS OF LIFE HUMAN ANIMAL OR OTHERWISE[.]" A coworker of Mr. Khan's faxed the cartoon to the Chief Pilot in Manassas, Virginia, who alerted Ms. Finnigan. Upon inquiry, it was learned that the cartoon was drawn at Captain Riley's crash pad by his roommate, Captain Heuston. Ms. Finnigan contacted Mr. Khan, who informed her that Captain Riley made a death threat against him and his wife, and that he filed a criminal report. Captain Riley was suspended on July 9, 2001.

A meeting was scheduled for Captain Heuston to meet with Ms. Finnigan and the Chief Pilot in Manassas, Virginia. However, prior to the time of the meeting, Captain Heuston faxed in a letter of resignation and did not report for the meeting. Captain Riley was scheduled to appear for a meeting on July 11, 2001. However, instead of reporting for the meeting, Captain Riley telephoned from his attorney's office. During the phone call, Ms. Finnigan terminated Captain Riley; wherein, Captain Riley tendered his forced resignation. After the resignations of Captains Riley and Heuston, Mr. Khan was no longer the subject of any other improper conduct from his coworkers.

Mr. Khan was the only one from his training class who had not been upgraded from First Officer to Captain. On October 30, 2001, Mr. Khan underwent a mandated FAA proficiency check. Mr. Khan satisfactorily passed the oral portion of the exam, but failed the flying portion. During the proficiency check, Mr. Khan failed to complete a takeoff stall, an FAA required maneuver. His attempt at this tactic resulted in a loss of an unacceptable amount of altitude during the maneuver.⁵ The check airman for the proficiency check alerted Mr. Khan to...