Ford Motor Credit Co. v. West Va. Human Rights Comm'n

• Decision Date: 05 May 2010
• Docket Number: No. 35301.,35301.
• Citation: 696 S.E.2d 282,225 W.Va. 766
• Court: West Virginia Supreme Court
• Parties: FORD MOTOR CREDIT COMPANY, Respondent Below, Appellant,v.WEST VIRGINIA HUMAN RIGHTS COMMISSION and Nabil Akl, Petitioners Below, Appellees.

225 W.Va. 766

696 S.E.2d 282

West Virginia.

FORD MOTOR CREDIT COMPANY, Respondent Below, Appellant,v.WEST VIRGINIA HUMAN RIGHTS COMMISSION and Nabil Akl, Petitioners Below, Appellees.

No. 35301.

Supreme Court of Appeals of

Submitted April 14, 2010.

Decided May 5, 2010.

COPYRIGHT MATERIAL OMITTED

Syllabus by the Court

1. “ ‘In order to make a prima facie case of [disparate-treatment] employment discrimination under the West Virginia Human Rights Act, W. Va.Code § 5-11-1 [to 5-11-19, as amended], the plaintiff must offer proof of the following: (1) That the plaintiff is a member of a protected class. (2) That the employer made an adverse decision concerning the plaintiff. (3) But for the plaintiff's protected status, the adverse decision would not have been made.’ Syllabus point 3 Conaway v. Eastern Associated Coal Corp., 178 W.Va. 164, 358 S.E.2d 423 (1986).” Syllabus point 1 West Virginia Institute of Technology v. West Virginia Human Rights Commission, 181 W.Va. 525, 383 S.E.2d 490 (1989).

2. “The complainant's prima facie case of disparate-treatment employment discrimination can be rebutted by the employer's presentation of evidence showing a legitimate and nondiscriminatory reason for the employment-related decision in question which is sufficient to overcome the inference of discriminatory intent.” Syllabus point 2 West Virginia Institute of Technology v. West Virginia Human Rights Commission, 181 W.Va. 525, 383 S.E.2d 490 (1989).

3. “To establish a claim for [national origin] discrimination, under the West Virginia Human Rights Act, West Virginia Code §§ 5-11-1 to -20 (1999) based upon a hostile or abusive work environment, a plaintiff-employee must prove that: (1) that the subject conduct was unwelcome; (2) it was based on the [national origin] of the plaintiff; (3) it was sufficiently severe or pervasive to alter the plaintiff's conditions of employment; and (4) it was imputable on some factual basis to the employer.” Syllabus point 2 Fairmont Specialty Services v. West Virginia Human Rights Commission, 206 W.Va. 86, 522 S.E.2d 180 (1999).

4. “In order to constitute harassment and satisfy the first prong of a hostile work environment claim as set forth in syllabus point 2 of Fairmont Specialty Services v. West Virginia Human Rights Commission, 206 W.Va. 86, 522 S.E.2d 180 (1999), the subject conduct must be unwelcome in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive.” Syllabus point 5, Erps v. West Virginia Human Rights Commission, 224 W.Va. 126, 680 S.E.2d 371 (2009).

5. “When a plaintiff bringing a hostile work environment claim pursuant to the standards enunciated in syllabus point 2 of Fairmont Specialty Services v. West Virginia Human Rights Commission, 206 W.Va. 86, 522 S.E.2d 180 (1999), has solicited, incited or participated in the subject offensive conduct, the plaintiff must introduce evidence indicating (1) that he or she ultimately informed the involved co-workers and/or supervisors that future instances of such conduct would be unwelcome, and (2) that conduct thereafter continued. Where such evidence is produced, a question of fact is created as to whether or not the conduct was unwelcome.” Syllabus point 6, Erps v. West Virginia Human Rights Commission, 224 W.Va. 126, 680 S.E.2d 371 (2009).

6. “A constructive discharge cause of action arises when the employee claims that because of age, race, sexual, [national origin,] or other unlawful discrimination, the employer has created a hostile working climate which was so intolerable that the employee was forced to leave his or her employment.” Syllabus point 4, Slack v. Kanawha County Housing and Redevelopment Authority, 188 W.Va. 144, 423 S.E.2d 547 (1992).

7. “In order to prove a constructive discharge, a plaintiff must establish that working conditions created by or known to the employer were so intolerable that a reasonable person would be compelled to quit. It is not necessary, however, that a plaintiff prove that the employer's actions were taken with a specific intent to cause the plaintiff to quit.” Syllabus point 6, Slack v. Kanawha County Housing and Redevelopment Authority, 188 W.Va. 144, 423 S.E.2d 547 (1992).

8. “An employer will not be liable for discriminatory acts of its employee unless he knew or reasonably should have known of the discriminatory acts and did nothing to correct them, or expressly or impliedly authorized or ratified them.” Syllabus point 8, Paxton v. Crabtree, 184 W.Va. 237, 400 S.E.2d 245 (1990).

Robert D. Fisher, Adams, Fisher & Chappel, PLLC, Ripley, WV, Charlie J. Harris, Jr., Julia D. Kitsmiller, Pro Hac Vice, Seyferth Blumenthal & Harris, LLC, Kansas City, MO, for Appellant, Ford Motor Credit Company.

Andrew J. Katz, The Katz Working Families Law Firm, Charleston, WV, for Appellee Mr. Akl.

PER CURIAM:

This is an appeal by Ford Motor Credit Company, appellant/respondent below (hereinafter referred to as “Ford Motor”), from a decision of the West Virginia Human Rights Commission (hereinafter referred to as “the HRC”) that affirmed the decision of an Administrative Law Judge (hereinafter referred to as “ALJ”) awarding a judgment in favor of Nabil Akl, appellee/petitioner below (hereinafter referred to as “Mr. Akl”). In this appeal, Ford Motor Company contends that it was error for the HRC to affirm the ALJ's determination that Mr. Akl established a claim for disparate treatment, hostile work environment, and constructive discharge. After a careful review of the briefs, the record submitted on appeal, and listening to the arguments of the parties, we reverse. ¹

I.FACTUAL AND PROCEDURAL HISTORY

Mr. Akl is a United States citizen. He was born in Lebanon in 1967. In 1976, Mr. Akl immigrated to the United States with his family. In 1998, Mr. Akl was hired by Ford Motor as a Customer Service Representative for its North Atlanta Branch office.² Subsequently, Mr. Akl was relocated to offices in Nashville and Kansas City. In February 2005, Ford Motor relocated Mr. Akl to Huntington, West Virginia, and promoted him to the position of Dealer Services Supervisor.³ While at the Huntington office, Mr. Akl and another employee, Carmine Spada, supervised approximately twelve other employees.

In early September 2005, Ford Motor conducted an online anonymous personnel survey at the Huntington office.⁴ The survey was designed to determine the level of employee job satisfaction with management practices and the implementation of company policies and procedures. The survey result demonstrated a high level of employee dissatisfaction at the Huntington office. As a result of the negative feedback from the survey, Ford Motor sent two of its human resource personnel, DeAnne Griffore and Emma Loy, to the Huntington office to conduct an on-site investigation into employee dissatisfaction at the office.

Ms. Griffore and Ms. Loy conducted interviews with employees at the Huntington office. During the interviews, nine of the employees stated that Mr. Akl used offensive language at the office. Some of the comments attributed to Mr. Akl include: “all I need is another damn woman telling me what to do;” “kiss my balls;” “who's sucking your dick now;” “you must have the balls the size of raisins;” telling a co-worker “you need to do it because its [sic] your fucking job;” making homosexual jokes; and imitating mentally challenged people. The branch operations manager at the Huntington office, David MacDonald, informed Ms. Griffore and Ms. Loy that he had advised Mr. Akl on three separate occasions that he should not use profanity while at the office. Specifically, Mr. MacDonald stated that he spoke with Mr. Akl about his inappropriate language in April, July, and August of 2005. Mr. MacDonald further stated that he placed a jar on Mr. Akl's desk for the purpose of having him place a coin in the jar whenever he used profanity at the office. Mr. MacDonald indicated that this “swear jar” was solely for Mr. Akl because no other employee exhibited a problem with inappropriate language.

After Ms. Griffore and Ms. Loy completed their interviews, they met with Mr. Akl on September 13, 2005. At that meeting, the following memorialized exchange occurred between Ms. Loy, Ms. Griffore, and Mr. Akl:

Ms. Loy: It has been brought to our attention that there has been some inappropriate behavior on your part. I'm going to provide the allegations and I would like your response to each of them. It has been alleged that you use the “f” word in regular conversation on a regular basis.

Mr. Akl: That is an exaggeration. I don't say it all the time. I say a lot of things with dealers-get wrapped up in their environment. It was mentioned to me way back and I've tried to improve. Dave (MacDonald) told me to be careful what I say on the floor and watch my language.

Ms. Loy: Are you aware of the company policy on proper conduct and how we treat and talk to employees?

Mr. Akl: I haven't read the policy but it makes sense that you wouldn't cuss like a sailor.

Ms. Loy: Tell us about the swear jar. How did that come about and why?

Mr. Akl: It's for using any words that we shouldn't, more than just swear. You put a quarter in if you say damn. Dave brought it out to help as a reminder of where we're at and what we are saying.

Ms. Loy: It has been alleged that you engage in banter with another employee making comments to the effect of “who is sucking your dick?”, “did they hit their head on the way out from under your desk?”, and general comments inferring sexual connotation.

Mr. Akl: That first comment is over the top-I would not say that. I don't remember saying those things.

Ms. Loy: Did you make any reference to blow jobs?

Mr. Akl: I don't think I would have said that.

Ms. Loy: It has been alleged that you've made comments on or after phone calls to the effect of “you can kiss my balls” and “fuck him”.

Mr. Akl: I could see saying that (“fuck him”). I might have said some things but I

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