Pajak v. Under Armour, Inc.

• Citation: 873 S.E.2d 918
• Decision Date: 22 April 2022
• Docket Number: 21-0484
• Parties: Cynthia D. PAJAK, Plaintiff Below, Petitioner, v. UNDER ARMOUR, INC. ; Under Armour Retail, Inc.; and Brian Boucher, Defendants Below, Respondents.
• Court: Supreme Court of West Virginia

873 S.E.2d 918

Cynthia D. PAJAK, Plaintiff Below, Petitioner,

v.UNDER ARMOUR, INC. ; Under Armour Retail, Inc.; and Brian Boucher, Defendants Below, Respondents.

No. 21-0484

Supreme Court of Appeals of West Virginia.

Submitted: February 16, 2022

Filed: April 22, 2022

Amy M. Smith, Robert M. Steptoe, Jr., Larry J. Rector, Allison B. Williams, Dylan T. Hughes, Steptoe & Johnson PLLC, Bridgeport, West Virginia, Attorneys for the Petitioner

Scott H. Kaminski, Ray, Winton & Kelley, PLLC, Charleston, West Virginia, Attorney for the Respondent, Brian Boucher

Jill E. Hall, Justin M. Harrison, Grace E. Hurney, Laura A. Hoffman, Jackson Kelly PLLC, Charleston, West Virginia, Attorneys for the Respondents, Under Armour, Inc., and Under Armour Retail, Inc.

Mychal S. Schulz, Babst Calland, Charleston, West Virginia

Todd A. Mount, Shaffer & Shaffer, PLLC, Madison, West Virginia, Attorneys for Amicus Curiae, Defense Trial Counsel of West Virginia

Moats, Justice:

The United States District Court for the Northern District of West Virginia has certified the following question to this Court, which seeks to clarify the application of the West Virginia Human Rights Act ("WVHRA") when the plaintiff's employing entity¹ does not meet the WVHRA definition of "employer":

Whether an entity that does not meet the definition of "employer" in West Virginia Code § 5-11-3(d) is nonetheless subject to liability under West Virginia Code § 5-11-9(7) as a "person" defined in West Virginia Code § 5-11-3(a) ?

We find the question posed is too broadly stated. Therefore, we exercise our authority to reformulate and more narrowly phrase the question:

May an entity that does not meet the West Virginia Human Rights Act definition of "employer," as set out in West Virginia Code § 5-11-3(d) (eff. 1998), be potentially liable to its own employee as a "person," as defined in West Virginia Code § 5-11-3(a), for an alleged violation of West Virginia Code § 5-11-9(7) (eff. 2016)?

We answer this question in the negative.²

I.FACTUAL AND PROCEDURAL HISTORY

Petitioner, Ms. Cynthia D. Pajak ("Ms. Pajak"), was hired by the respondents, Under Armour, Inc. and/or Under Armour Retail, Inc. (collectively "Under Armour"), in November 2012, to serve as director of Under Armour's East and Canada regions. She worked remotely from Bridgeport, West Virginia, and reported to respondent Brian Boucher ("Mr. Boucher"). She has alleged the following facts. In January and April of 2018, she received reports of several instances of inappropriate workplace conduct in the realm of sexual harassment from female Under Armour employees.³ Ms. Pajak collected written statements describing the misconduct and provided them to Mr. Boucher, who minimized the misconduct and directed Ms. Pajak to "move on." A mid-year performance review Ms. Pajak received from Mr. Boucher on June 12, 2018, raised no concerns about her job performance; nevertheless, nine days later, and without consulting Under Armour's human resources department, Mr. Boucher raised concerns about Ms. Pajak's job performance and asked her to voluntarily leave her position. Mr. Boucher then placed Ms. Pajak on a sixty-day Performance Improvement Plan ("PIP") on September 10, 2018, instead of a ninety-day PIP as Under Armour typically allowed, and failed to provide any guidance as to what areas of her performance required improvement. Additionally, and contrary to his representation that he would meet regularly with Ms. Pajak during the PIP period, Mr. Boucher met with Ms. Pajak only once, and she requested that meeting. Ms. Pajak was dismissed from her employment on December 10, 2018, ninety days after her PIP was initiated.

On July 16, 2019, Ms. Pajak filed a lawsuit against Under Armour and Mr. Boucher in the Circuit Court of Harrison County, West Virginia. She asserted claims for wrongful discharge under Harless v. First National Bank in Fairmont , 162 W. Va. 116, 246 S.E. 2d 270 (1978) ; Negligent Hiring, Supervision, and Retention; Intentional Infliction of Emotional Distress or Tort of Outrage; and, pertinent to the instant certified question, violations of the WVHRA. In her WVHRA claim, Ms. Pajak has alleged that Under Armour placed her on a pretextual PIP and then discharged her as a result of her protected activity in violation of West Virginia Code § 5-11-9(7) ; therefore, she suffered retaliation, harassment, and discrimination based on sex due to her protected activity. Under Armour removed the case to the United States District Court for the Northern District of West Virginia and filed a motion for partial dismissal of Ms. Pajak's complaint. Under Armour sought, in relevant part, dismissal of Ms. Pajak's WVHRA claim on the ground that Ms. Pajak had failed to allege that Under Armour satisfied the numerosity portion of the WVHRA definition of "employer," under which Under Armour had to employ "twelve or more persons within the state for twenty or more calendar weeks in the calendar year in which the act of discrimination allegedly took place or the preceding calendar year." W. Va. Code § 5-11-3(d) (eff. 1998). The district court denied Under Armour's motion, and discovery proceeded. Eventually, Under Armour filed a motion asking the district court to certify the following question to this Court:

Whether an "employer" as defined in West Virginia Code Section 5-11-3(d) means one who employs twelve or more persons working within the state for twenty or more calendar weeks in the calendar year the discrimination allegedly took place or in the preceding calendar year[?]

The district court heard arguments on the motion, initially granted it, and ordered that the following two questions be certified:

1. Whether an "employer" as defined in West Virginia Code § 5-11-3(d) means one who employs twelve or more persons working within the state for twenty or more calendar weeks in the calendar year the discrimination allegedly took place or in the preceding calendar year?

2. Whether a corporate employer is a "person" as defined in West Virginia Code § 5-11-3(a), regardless of whether it is also an "employer" as defined in § 5-11-3(d) ?

However, upon further consideration the district court determined that the plain language of the WVHRA mandates that an "employer" have at least twelve employees who perform their assigned tasks and responsibilities within the State of West Virginia. Accordingly, the district court vacated, in part, its order granting Under Armour's motion to certify and declined to certify the first question. Thereafter, by order entered on June 11, 2021, the district court certified only the following question to this Court:

Whether an entity that does not meet the definition of "employer" in West Virginia Code § 5-11-3(d) is nonetheless subject to liability under West Virginia Code § 5-11-9(7) as a "person" defined in West Virginia Code § 5-11-3(a) ?

We accepted the certified question and placed this matter on the docket for argument under Rule 20 of the West Virginia Rules of Appellate Procedure.

II.STANDARD OF REVIEW

This Court's consideration of a certified question from a federal district court is plenary. " ‘A de novo standard is applied by this Court in addressing the legal issues presented by a certified question from a federal district or appellate court.’ Syllabus Point 1, Light v. Allstate Ins. Co. , 203 W. Va. 27, 506 S.E.2d 64 (1998)." Syl. pt. 1, Martinez v. Asplundh Tree Expert Co. , 239 W. Va. 612, 803 S.E.2d 582 (2017). Furthermore, to the extent that we must engage in statutory construction to answer the question that has been certified, our interpretation of the relevant statutory provisions likewise is plenary. "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. pt. 1, Chrystal R.M. v. Charlie A.L. , 194 W. Va. 138, 459 S.E.2d 415 (1995). Our resolution of the certified question at issue will be guided by these standards.

III.DISCUSSION

At the outset, we recognize our authority to reformulate the question herein certified.

When a certified question is not framed so that this Court is able to fully address the law which is involved in the question, then this Court retains the power to reformulate questions certified to it under ... the Uniform Certification of Questions of Law Act found in W. Va. Code , 51-1A-1, et seq. ...

Syl. pt. 3, in part, Kincaid v. Mangum , 189 W. Va. 404, 432 S.E.2d 74 (1993). See also W. Va. Code § 51-1A-4 (eff. 1996) ("The Supreme Court of Appeals of West Virginia may reformulate a question certified to it."). In this case, we find the certified question is too broadly stated. Therefore, we reformulate and more narrowly phrase the question to be resolved as follows:

May an entity that does not meet the West Virginia Human Rights Act definition of "employer," as set out in West Virginia Code § 5-11-3(d) (eff. 1998), be potentially liable to its own employee as a "person," as defined in West Virginia Code § 5-11-3(a), for an alleged violation of West Virginia Code § 5-11-9(7) (eff. 2016)?

The district court determined, for purposes of the underlying litigation, that Under Armour does not meet the definition of "employer" as set out in West Virginia Code § 5-11-3(d) and declined to certify a question to this Court addressing that issue. Accordingly, for purposes of this opinion, we accept the district court's determination as to Under Armour's status as an "employer" under the WVHRA.⁴ Our task then is simply to determine, in the context of an employee/employing entity, whether the term "person" as used in West Virginia Code § 5-11-9(7) is intended by the Legislature to include an entity, such as Under Armour, that does not meet the WVHRA definition of "employer."

To answer this question, we must examine relevant provisions of the WVHRA. In doing so, we are mindful that "[t]he primary object in construing a statute is to ascertain and give effect to the intent of the...