Pajak v. Under Armour, Inc.

CYNTHIA D. PAJAK, Plaintiff, v. UNDER ARMOUR, INC.; UNDER ARMOUR RETAIL, INC.;andBRIAN BOUCHER; Defendants.

CIVIL ACTION NO. 1:19CV160

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

March 5, 2021

(Judge Keeley)

MEMORANDUM ORDER AND OPINION GRANTING MOTION TO CERTIFY QUESTIONS TO THE WEST VIRGINIA SUPREME COURT OF APPEALS [DKT. NO. 130]

On December 4, 2020, the Court heard argument on the motion of the defendants, Under Armour, Inc., and Under Armour Retail, Inc., (collectively, "Under Armour"), to certify a legal question to the West Virginia Supreme Court of Appeals (Dkt. No. 130). For the reasons that follow, the Court GRANTS Under Armour's motion and proposes that the following 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)?

I. BACKGROUND

A. Brief Statement of the Parties' Dispute

This action stems from the discharge of the plaintiff, Cynthia Pajak ("Pajak"), by Under Armour. Pajak alleges that after she reported inappropriate conduct that created a hostile work environment she was the victim of gender discrimination and a retaliatory discharge (Dkt. No. 1-1 at 3).

In November 2012, Under Armour hired Pajak as its director of the East and Canada regions.¹ Id. at 6. Pajak worked remotely from Bridgeport, West Virginia and reported to the defendant, Brian Boucher ("Boucher"). Id. at 6-7. In January and April 2018, female employees reported several instances of inappropriate workplace conduct to Pajak. Such conduct included a district manager taking off his shirt and pretending to do a striptease and posting a photo of himself on Under Armour's internal social media site posing for a body building competition in a speedo, and another district manager making comments about a female colleague's appearance. Id. Pajak encouraged these employees to submit written statements, which she then provided to Boucher. Id. at 7-8. According to Pajak, Boucher minimized the employees' concerns and directed Pajak to "move on." Id. at 7-9.

On June 12, 2018, Boucher delivered Pajak's midyear review, which raised no concerns about her job performance. Id. at 9. But a mere nine (9) days later, on June 21, 2018, Boucher, for the first time, raised concerns about Pajak's job performance, and asked her to voluntarily leave her position at Under Armour. Id. at 9-10. Boucher had not consulted Under Armour's human resources department before approaching Pajak. Id. at 9-10. Pajak declined to leave her position and, on September 10, 2018, Boucher placed her on a sixty-day Performance Improvement Plan ("PIP"), although the typical "PIP period" at Under Armour is ninety days. Id. at 10-11.

Pajak contends Boucher provided no guidance in the PIP as to what areas of her performance needed to improve. Id. at 10. She further alleges that the PIP contained only subjective performance metrics, and that, although Boucher told her he would meet with her regularly during the PIP period, he did so only once and that was at her request. Id. at 11.

Pajak further asserts that the culture at Under Armour created a hostile work environment. During her PIP period, for example, Under Armour's workplace culture attracted national notoriety,prompting Under Armour's CEO to publicly pledge to improve the workplace environment for its employees.² Id. at 11.

Pajak, however, contends that Under Armour was never committed to this promise, as evidenced by its failure to respond to inappropriate comments made by a district manager during a conference call, the sole purpose of which was to discuss the media's criticisms of Under Armour's corporate culture. Id. Although Pajak and other female employees reported their discomfort with the district manager's comments and the company's failure to address them on the call, no action was taken. Id. Finally, on December 10, 2018, Boucher fired Pajak after her PIP period expired. Id. at 14.

On July 16, 2019, Pajak sued Under Armour and Boucher in the Circuit Court of Harrison County, West Virginia, alleging she was discharged in retaliation for reporting various instances of inappropriate workplace behavior and seeking damages and potential reinstatement. Her complaint alleges four causes of action, including: (1) wrongful discharge under Harless v. First National Bank of Fairmont, 246 S.E.2d 270 (W. Va. 1978); (2) violations of the West Virginia Human Rights Act ("WVHRA"); (3) negligent hiring,supervision, and retention; and (4) intentional infliction of emotional distress. Under Armour timely removed the case to this Court on August 19, 2019 (Dkt. No. 1).

B. WVHRA Numerosity Requirement Dispute

Count II of Pajak's complaint alleges that Under Armour violated § 5-11-9(7) of the West Virginia Human Rights Act, which prohibits any person or employer from retaliating against an employee for opposing an employment practice she reasonably and in good faith believes violates the provisions of the statute. W. Va. Code § 5-11-9(7); see also Brown v. City of Montgomery, 775 S.E.2d 653, 663 (W. Va. 2014).

Throughout this case, the parties have disagreed about whether Under Armour is either a "person" or an "employer" as those terms are defined in the WVHRA. Under the WVHRA, a "person" is "one or more individuals, partnerships, associations, organizations, corporations, labor organizations, cooperatives, legal representatives, trustees, trustees in bankruptcy, receivers and other organized groups of persons." Id. § 5-11-3(a). An "employer" is "any person employing 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." Id. § 5-11-3(d).

The issue at hand arose when, pursuant to Federal Rule of Civil Procedure 12(b)(6), Under Armour moved to dismiss Count II of Pajak's complaint for failure to state a claim (Dkt. No. 5). In its motion, Under Armour contends it is not an "employer" under § 5-11-3(d) of the WVHRA because fewer than twelve of its employees worked within the state of West Virginia during the relevant time (Dkt. No. 6 at 1).

In response, Pajak argued that discovery was necessary before the Court could determine whether Under Armour meets the WVHRA's definition of either a "person" or an "employer" (Dkt. No. 7 at 1). This Court denied Under Armour's motion to dismiss and granted discovery on the issue (Dkt. No. 53 at 4-5).

During discovery, Pajak requested that Under Armour identify every individual who lived in West Virginia and worked for Under Armour during the 2017 and 2018 calendar years (Dkt. No. 39-7). She sought this information to support her theory that the WVHRA's numerosity requirement could be satisfied if a company employed at least twelve employees who lived in West Virginia, regardless of where they worked.

Under Armour identified two employees who worked remotely from West Virginia in 2017 and 2018, one of whom was Pajak. Based on its interpretation of the definition of an "employer" in § 5-11-3(d), it asserted that the numerosity requirement could only besatisfied if at least twelve of its employees actually "worked" within the state. Accordingly, it declined to provide information about employees who lived in West Virginia but worked elsewhere (Dkt. No. 44 at 13). This Court then ordered Under Armour to produce information to Pajak about employees who lived in West Virginia in 2017 and 2018 but worked elsewhere (Dkt. No. 107 at 98-99). Under Armour did so, but based on the parties' dispute about the numerosity requirement of § 5-11-3(d), it asked this Court to certify the following question to the West Virginia Supreme Court of Appeals:

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?

(Dkt. No. 130) (emphasis in original).

Under Armour contends the answer to this question is outcome determinative as to Count II and asserts it should be answered in the affirmative because it is undisputed that (1) more than twelve Under Armour employees lived in West Virginia but worked elsewhere, and (2) fewer than twelve Under Armour employees actually worked within West Virginia in 2017 and 2018 (Dkt. No. 131 at 6). Because fewer than twelve employees worked within West Virginia during the relevant time period, Under Armour contends it is not an "employer"under the WVHRA, and Pajak's claim in Count II fails as a matter of law.

Pajak opposes certification but, should the Court certify Under Armour's proposed question, contends it should be answered in the negative (Dkt. No. 136). She avers that the WVHRA's definition of an "employer" is satisfied so long as, during the relevant time, Under Armour employed at least twelve individuals who lived in West Virginia even if they worked remotely or from a physical location in another state. She argues that the term "working" should not be read into § 5-11-3(d), which is clear on its face, and that the definition of an "employer" should be liberally construed in accord with West Virginia's public policy of "provid[ing] all of its citizens equal opportunity for employment." Id. at 13-16.

In addition to the parties' dispute about the definition of an "employer" under the WVHRA, Pajak suggests an additional question for certification:

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)?

Under Armour disputes...