656 S.E.2d 33
Dwight J. Staples
Henderson, Henderson &
Staples, L.C.
Huntington, West Virginia
Attorney for the Appellee,
Rao Zahid Khan
The Opinion of the Court was delivered PER CURIAM.
JUSTICES STARCHER AND ALBRIGHT concur in part, and dissent in part, and
reserve the right to file separate opinions.
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).
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, (See footnote 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.
Captain Mayers, as Lead Pilot at [Colgan's] Huntington crew
base, had no actual authority to take any disciplinary actions
against Captain Riley (or Captains Heuston or Galbrath) because
he had no management or supervisory authority. [Colgan] had
a procedure for reporting harassment which included reporting
it to the Chief Pilot or the Vice President for Personnel. The
harassment policy of [Colgan] makes it incumbent upon any
employee to report discrimination and to investigate it should it
occur.
Furthermore, the record makes clear that Colgan employees must undergo Discrimination
and Harassment Training. On August 7, 2000, Mr. Khan signed an acknowledgment
certifying that he had reviewed and understood the anti-harassment policy and received the
training, which stated:
If anyone believes they are being subjected to any of
these forms of harassment, or believes they are being
discriminated against because other employees are receiving
favored treatment in exchange, for example, for sexual favors,
we must bring this to the attention of appropriate persons in
management. The very nature of harassment makes it virtually
impossible to detect unless the person being harassed registers
his or her discontent with Colgan Air Management.
Consequently, in order for Colgan Air to deal with the problem,
we must report such offensive conduct or situations to the
Immediate Supervisor, or the Director of Personnel[.] . . . If you
are unsatisfied with the attention your report receives, contact
Mary Finnigan, Vice President, Marketing and Personnel[.]
The ALJ went on to find that management did not know of the harassing situation until Mr.
Khan went to Manassas, Virginia, to speak to Ms. Finnigan following the comments about
his wife. Thereafter, Colgan took appropriate and decisive action.
In regard to Mr. Khan's claim that the failure to promote him to Captain was a result of disparate and retaliatory treatment, the ALJ concluded as follows:
[Mr. Khan] has established a prima facie case of both
hostile workplace discrimination and discrimination in the
failure to promote him to Captain on the basis of race, national
origin, religion and gender and retaliation; and retaliation for
complaining of discrimination in the failure to promote him to
Captain and subsequent termination after failing his FAA
proficiency check ride. [Colgan] claims that the discriminatory
hostile work environment is not imputable to the employer
because it was created by [Mr. Khan's] coworkers and not his
supervisors; and, that [Colgan] took immediate and effective
action to correct the situation once the appropriate corporate
officials were made aware of the situation. [Colgan] articulated
legitimate non discriminatory reasons for its failure to upgrade
[Mr. Khan] to Captain and his forced resignation following an
FAA proficiency check ride. Those reasons being his poor pilot
skills and his failing three required maneuvers during the FAA
proficiency check ride. [Mr. Khan] has not proven by a
preponderance of the evidence that race, national origin, religion
or gender discrimination motivated or played a role in the
decision not to upgrade [Mr. Khan] to Captain or the decision to
terminate his employment; or, that his termination was the result
of retaliation for his complaints about discrimination. The
undersigned finds that [Mr. Khan] has not proven by a
preponderance of the evidence that the hostile work
environment is imputable to [Colgan] because [Colgan] took
reasonable steps to investigate and eliminate the harassment of
[Mr. Khan] once it became aware of the situation.
Subsequently, Mr. Khan appealed this adverse decision by the ALJ to the full
HRC. The HRC reversed the ALJ and found Colgan to be liable to Mr. Khan for workplace
discrimination. In so doing, the HRC found as follows:
The findings of fact of the [ALJ], in this case, reveal that
[Mr. Khan] faced egregious harassment because of his religion,
ethnicity and national origin at [Colgan's] facility at the Tri-
State[] Airport in Huntington, West Virginia. [Colgan's]
management officials at the Tri-State[] Airport failed to address
this harassment at the Tri-State Airport until compelled to do so
by [Colgan's] corporate management located at Manassas,
Virginia. . . . To [Colgan's] credit, once the report of harassment
was made to [Colgan's] management officials in Manassas,
[Colgan] did act to stop the harassment. . . . Accordingly, the
Commission modifies the [ALJ's] decision to find that [Colgan]
is liable in damages to [Mr. Khan] for $5,000.00 (sum certain)
for the harassment suffered by [Mr. Khan] and in addition for
the expenses he incurred in traveling to Manassas, Virginia[,] to
report the harassment to [Colgan's] corporate officials _
something that should have been the responsibility (at the very
least), of [Colgan's] local management officials at the Tri-State
Airport. The Commission also finds that [Colgan] is liable for
[Mr. Khan's] attorney fees and costs associated with this case in
the sum of $46,575.00. . . . [t]he Commission finds that not
offering retraining to [Mr. Khan] was, in fact, discrimination,
and finds that [Mr. Khan] should be reinstated to the next
available non-flying position with retroactive seniority and
benefits along with the opportunity to retrain.
Colgan appealed the HRC's rulings directly to this Court.
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.
Syl. pt. 1, Cobb v. West Virginia Human Rights Comm'n, 217 W. Va. 761, 619 S.E.2d 274
(2005). In reviewing cases appealed to a circuit court from the Human Rights Commission,
we have held that
“West Virginia Human Rights Commission's findings of
fact should be sustained by reviewing courts if they are
supported by substantial evidence or are unchallenged by the
parties.” Syllabus Point 1, West Virginia Human Rights Comm'n
v. United Transp. Union, Local No. 655, 167 W. Va. 282, 280
S.E.2d 653 (1981).
Syl. pt. 2, Smith v. West Virginia Human Rights Comm'n, 216 W. Va. 2, 602 S.E.2d 445
(2004). Further,
“[o]n appeal of an administrative order from a circuit
court, this Court is bound by the statutory standards contained
in W. Va. Code § 29A-5-4(a) and reviews questions of law
presented de novo; findings of fact by the administrative officer
are accorded deference unless the reviewing court believes the
findings to be clearly wrong.” Syllabus Point 1, Muscatell v.
Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996).
Syl. pt. 1, Smith, 216 W. Va. 2, 602 S.E.2d 445. Thus, we apply a de novo standard of
review to questions of law, and we will not disturb the findings of fact unless they are clearly
wrong. Mindful of these applicable standards, we proceed to consider the parties' arguments.
Thus, to resolve this appeal, we must address two issues. First, we must
address whether Colgan is liable to Mr. Khan for harassment based upon a determination as
to when management knew of the unlawful discriminatory conduct of Mr. Khan's coworkers.
Second, we will determine if Colgan discriminated against Mr. Khan when it discharged him
and when it did not offer to retrain him with regard to his failed proficiency test, and if so,
whether a legitimate nonpretextual reason was offered. These intertwined issues will be
discussed together.
Under W. Va. Code § 5-11-9 (1998) (Repl. Vol. 2006),
[i]t shall be an unlawful discriminatory practice, unless
based upon a bona fide occupational qualification, or except
where based upon applicable security regulations established by
the United States or the state of West Virginia or its agencies or
political subdivisions:
(1) For any employer to discriminate against an
individual with respect to compensation, hire, tenure, terms,
conditions or privileges of employment if the individual is able
and competent to perform the services required[.]
Further, “[t]he term 'discriminate' or 'discrimination' means to exclude from, or fail or
refuse to extend to, a person equal opportunities because of race, religion, color, national
origin, ancestry, sex, age, blindness, disability or familial status and includes to separate or
segregate[.]” W. Va. Code § 5-11-3(h) (1998) (Repl. Vol. 2006).
As previously stated, because it is uncontroverted that Mr. Khan was the victim
of unlawful discriminatory practices by his coworkers, the focus of our investigation must
delve into when management knew of this behavior and whether appropriate action was
taken. We have previously explained as follows:
When the source of the harassment is a person's co-workers and
does not include management personnel, the employer's liability
is determined by its knowledge of the offending conduct, the
effectiveness of its remedial procedures, and the adequacy of its
response. Thus, an employer that has established clear rules
forbidding sexual harassment and has provided an effective
mechanism for receiving, investigating, and resolving
complaints of harassment may not be liable in a case of co-
worker harassment where the employer had neither knowledge
of the misconduct nor reason to know of it.
Hanlon v. Chambers, 195 W. Va. 99, 108, 464 S.E.2d 741, 750 (1995) (footnote omitted).
Simply, “the employer cannot be charged with responsibility for the victim's failure to complain.” Hanlon, id. (footnote omitted). Once an employer knows of the unlawful conduct executed by a victim's coworkers, this Court has directed that
[t]he 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.
Syl. pt. 3, Fairmont Specialty Servs. v. West Virginia Human Rights Comm'n, 206 W. Va.
86, 522 S.E.2d 180 (1999).
Applying these principles to the facts presently before this Court, it is clear that
Colgan had a policy in place for reporting harassment and discrimination, and further, that
Colgan took appropriate and decisive action as soon as the policy was followed and
management was informed of the discriminatory conduct. The company policy, which Mr.
Khan certified that he received and understood, directed that employees “must report such
offensive conduct or situations to the Immediate Supervisor, or the Director of Personnel[.]
. . . If you are unsatisfied with the attention your report receives, contact, Mary Finnigan,
Vice President, Marketing and Personnel[.]” While the Lead Pilot located in Huntington,
West Virginia, was aware of the “personality conflicts” between Mr. Khan and some of his
coworkers, the Lead Pilot is not the person to whom the reports must be made.
As found by the ALJ, “Captain Mayers, as Lead Pilot at [Colgan's] Huntington
crew base, had no actual authority to take any disciplinary actions . . . because he had no
management or supervisory authority. [Colgan] had a procedure for reporting harassment
which included reporting it to the Chief Pilot or the Vice President for Personnel.” The
relevant management positions are housed in Manassas, Virginia, at corporate headquarters.
The Chief Pilot is Mr. Khan's immediate supervisor and is located in Manassas, Virginia.
Significantly, Mr. Khan cannot claim ignorance in contacting authorities at headquarters as
he did eventually make the appropriate contacts at headquarters to start the investigation into
his complaints.
Moreover, once the appropriate channels were followed and management was
alerted, Colgan took swift and decisive corrective action. Even the HRC recognized that
“once the report of harassment was made to [Colgan's] management officials in Manassas,
[Colgan] did act to stop the harassment[.]” Ms. Finnigan immediately conducted an
investigation, resulting in harassment retraining, a letter of reprimand, and a warning of
possible termination. When the violatory conduct did not cease, two employees were forced
to resign their positions. Mr. Khan admits that the discriminatory conduct from coworkers
ceased after the two perpetrators left employment. As soon as the appropriate management
officials were notified of the unlawful discriminatory conduct, swift and decisive action was
taken that ended the complained-of conduct. Thus, Colgan is not liable to Mr. Khan for
harassment.
Even though we have determined that Colgan is not liable to Mr. Khan for
harassment, our review does not end. We must next decide whether the failure to upgrade
Mr. Khan to a Captain position was in retaliation for his reports of discrimination, and
whether his subsequent forced resignation resulted from such retaliatory conduct. W. Va.
Code § 5-11-9 dictates as follows:
It shall be an unlawful discriminatory practice, unless
based upon a bona fide occupational qualification, or except
where based upon applicable security regulations established by
the United States or the state of West Virginia or its agencies or
political subdivisions:
. . . .
(7) For any person, employer, employment agency, labor
organization, owner, real estate broker, real estate salesman or
financial institution to:
. . . .
(C) Engage in any form of reprisal or otherwise discriminate
against any person because he or she has opposed any practices
or acts forbidden under this article or because he or she has filed
a complaint, testified or assisted in any proceeding under this
article.
As we have previously stated, “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.” Syl. pt. 11, Hanlon, 195 W. Va. 99, 464 S.E.2d 741.
Moreover, this Court has instructed as follows:
“'“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).
Syl. pt. 6, Conrad v. ARA Szabo, 198 W. Va. 362, 480 S.E.2d 801 (1996).
In light of the facts of the current situation, Mr. Khan has established a prima
facie case of retaliatory discharge. Mr. Khan engaged in a protected activity when he
complained of harassment and discrimination. It is also a foregone conclusion that Colgan
was aware of the protected activity once Ms. Finnigan, located at company headquarters,
became involved. The facts also show that Mr. Khan was discharged a short time after these
events occurred. Thus, the inference has been raised, and the employer must overcome the
inference of retaliatory discharge.
As this Court has previously recognized,
“[w]hen 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).
Syl. pt. 4, Birthisel v. Tri-Cities Health Servs. Corp., 188 W. Va. 371, 424 S.E.2d 606 (1992).
Colgan responded to the inference by averring that Mr. Khan was discharged due to his
failure to pass a mandatory FAA proficiency test. The ALJ found that “[Colgan] articulated
legitimate non discriminatory reasons for its failure to upgrade [Mr. Khan] to Captain and
his forced resignation following an FAA proficiency check ride. Those reasons being his
poor pilot skills and his failing three required maneuvers during the FAA proficiency check
ride.” Colgan has a duty under FAA guidelines to employ Captains who can safely and
effectively navigate aeronautical procedures. The evidence is clear and insurmountable that
Mr. Khan was unable to safely fly a plane, and that he failed a proficiency test that was
previously scheduled according to the FAA mandates. Thus, his forced resignation was a
result of his own inability to safely maneuver an airplane, and Colgan's failure to upgrade
his ranking to Captain was in accordance with the prescribed federal procedure. While Mr.
Khan argues that his failure at the proficiency test was the result of sabotage, such a claim
is not supported by the evidence. The FAA guidelines are very clear as to what aeronautical
moves are required and to what degree of deviation results in an acceptable performance.
There is no discretion as to whether a candidate passes or fails the test. Mr. Khan's
performance was not within the acceptable parameters; thus, he failed the proficiency check.
Significantly, the coworkers who had threatened to cause Mr. Khan to fail his proficiency test
were no longer employed at Colgan at the time of Mr. Khan's proficiency flight. Thus, no
adverse atmosphere was created by his coworkers.
The HRC's decision that the failure to retrain Mr. Khan was discrimination
also is not supported by the facts. The facts illustrate that, due to financial constraints, no
pilots were being offered retraining opportunities for a three-month period. Moreover, the
degree of inability showed by Mr. Khan to conduct an airplane in a safe manner was
egregious, and retraining would present safety issues. As has been previously stated, “'[t]he
complainant [in a case arising under the West Virginia Human Rights Act] may prevail if it
is shown the reason presented by the respondent is merely a pretext for a discriminatory
motive.' Syl. pt. 3, Mingo County Equal Opportunity Council v. State Human Rights
Comm'n, 180 W. Va. 240, 376 S.E.2d 134 (1988).” Syl. pt. 7, Wheeling-Pittsburgh Steel
Corp. v. Rowing, 205 W. Va. 286, 517 S.E.2d 763 (1999). Colgan provided a nonpretextual
reason for its decisions and was within its discretion to determine that retraining was not a
possibility, especially given the additional fact that Mr. Khan had been terminated from his
previous job for failure to pass a proficiency test. Thus, Colgan did not discriminate against
Mr. Khan when he was not upgraded to Captain status, or when he was subsequently forced
to resign after failing a proficiency test.