Pajak v. Under Armour, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

CYNTHIA D. PAJAK,

Plaintiff,

v. CIVIL ACTION NO. 1:19CV160

(Judge Keeley)

UNDER ARMOUR, INC.;

UNDER ARMOUR RETAIL, INC.; and

BRIAN BOUCHER;

Defendants.

MEMORANDUM ORDER AND OPINION VACATING

IN PART THE COURT’S PRIOR ORDER [DKT. NO. 290]

I.

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 the following

legal questions to the West Virginia Supreme Court of Appeals:

Question One: 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?

Question Two: 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)?

(Dkt. No. 290). In a Memorandum Opinion and Order on March 5, 2021,

the Court granted the pending motion.

MEMORANDUM ORDER AND OPINION VACATING

IN PART THE COURT’S PRIOR ORDER [DKT. NO. 290]

II.

Since agreeing to certify these questions, the Court has

further considered controlling precedent from the West Virginia

Supreme Court of Appeals and now concludes that its prior decision

to certify Question One was in error. Accordingly, for the reasons

that follow, it VACATES that part of its prior Memorandum Opinion

and Order certifying Question One (Dkt. No. 290).

III.

“A federal court exercising diversity jurisdiction is obliged

to apply the substantive law of the state in which it sits.” Volvo

Const. Equip. N. Am. v. CLM Equip. Co., Inc., 386 F.3d 581, 599-

600 (4th Cir. 2004) (citing Erie R.R. Co. v. Tompkins, 304 U.S.

64, 79 (1938)). In West Virginia, “[w]hen a statute is clear and

unambiguous and the legislative intent is plain the statute should

not be interpreted by the courts, and in such case it is the duty

of the courts not to construe but to apply the statute.” Syl. Pt.

1, W. Va. Radiologic Technology Bd. v. Darby, 427 S.E.2d 486 (W.

Va. 1993).

West Virginia has enacted the Uniform Certification of

Questions of Law Act, (“UCQLA”), W. Va. Code § 51–1A–1, et seq.,

which provides:

The Supreme Court of Appeals of West Virginia may answer

a question of law certified to it by any court of the

United States . . . if the answer may be determinative

of an issue in a pending case in the certifying court

MEMORANDUM ORDER AND OPINION VACATING

IN PART THE COURT’S PRIOR ORDER [DKT. NO. 290]

and if there is no controlling appellate decision,

constitutional provision or statute of this state.

W. Va. Code § 51–1A–3.

IV.

Previously, the Court determined that Question One was

appropriate for certification because West Virginia law was

unclear as to whether Under Armour employees living in West

Virginia but working in another state satisfied the numerosity

requirement of the West Virginia Human Rights Act (“WVHRA”). Upon

further consideration, however, the Court concludes that

controlling precedent from the West Virginia Supreme Court of

Appeals resolves this issue.

Under the WVHRA, “the term ‘employer’ means . . . 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.” W. Va. Code § 5-11-3(d). In Williamson v. Greene, 490 S.E.2d

23, 28 (W. Va. 1997), the Supreme Court of Appeals held that this

statutory definition is “clear and unambiguous and should not be

interpreted but instead, should be applied as written.” Id. at 28

(“[Section] 5–11–3(d) clearly and unambiguously provides that an

‘employer,’ for purposes of the West Virginia Human Rights Act,

means ‘any person employing twelve or more persons within the

MEMORANDUM ORDER AND OPINION VACATING

IN PART THE COURT’S PRIOR ORDER [DKT. NO. 290]

state[.]’”); see also Kalany v. Campbell, 640 S.E.2d 113, 116 (W.

Va. 2006) (noting with approval the circuit court’s determination

that the defendant “did not meet the definition of an ‘employer’

under the Act because he employed less than twelve employees.”).

Per Williamson, the Court is not permitted to interpret or

construe the WVHRA’s definition of an “employer,” but instead,

must apply the statute as written. The term “employ” means “to

make use of” or “to commission and entrust with performance of

certain acts or functions.” EMPLOY, Black's Law Dictionary (11th

ed. 2019). The plain language of the WVHRA thus mandates that an

“employer” have at least twelve employees who perform their

assigned tasks and responsibilities within the State of West

Virginia. In other words, to qualify as an “employer” under the

WVHRA an entity must have at least twelve employees actually

working in the State.

Undoubtedly, employees working at a brick and mortar location

in West Virginia or performing their job responsibilities from a

remote workplace located in West Virginia satisfy this

requirement. But here, discovery has established that, in the

relevant 2017 and 2018 calendar years, although more than twelve

Under Armour employees lived in West Virginia, fewer than twelve

worked in the State. And, as Williamson and Kalany teach, West

MEMORANDUM ORDER AND OPINION VACATING

IN PART THE COURT’S PRIOR ORDER [DKT. NO. 290]

Virginia citizenship alone is insufficient to satisfy the WVHRA’s

numerosity requirement.

During 2017 and 2018, no Under Armour employee worked from a

brick and mortar location in West Virginia, and only two employees

worked remotely from a location in West Virginia. One of these was

the Plaintiff. All other Under Armour employees living in West

Virginia commuted to a workplace in another state. Therefore, as

fewer than twelve Under Armour employees performed their job

responsibilities within the State of West Virginia in 2017 and

2018, Under Armour does not meet the numerosity requirement of §

5-11-3(d) and is not an “employer” under the WVHRA.

V.

In conclusion, the Court VACATES its prior decision to certify

Question One because Under Armour is not an employer pursuant to

§ 5-11-3(d) of the WVHRA. Its decision to certify Question Two

remains unchanged.

It is so ORDERED.

The Clerk SHALL transmit copies of this Memorandum Opinion to

counsel of record.

DATED: June 11, 2021.

/s/ Irene M. Keeley

IRENE M. KEELEY

UNITED STATES DISTRICT JUDGE