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. 1:19-CV-160

(KLEEH)

UNDER ARMOUR, INC.,

UNDER ARMOUR RETAIL, INC.,

and BRIAN BOUCHER,

Defendants.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

Pending before the Court are Defendant Brian Boucher’s Motion

for Summary Judgment [ECF No. 692] and Under Armour’s Motion for

Summary Judgment [ECF No. 699]. For the reasons that follow, the

Court GRANTS in part and DENIES in part the motions. ECF Nos. 692,

699.

I. PROCEDURAL BACKGROUND

On July 16, 2019, Plaintiff, Cynthia Pajak (“Pajak”), sued

Under Armour, Inc., Under Armour Retail, Inc., and Brian 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 initial 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)

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

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 [ECF No. 1]. On March 8,

2021, Pajak amended the complaint and asserted a fifth and sixth

cause of action, Intentional Spoilation of Evidence against

Defendants Under Armour and Brian Boucher. ECF No. 291, Am. Compl.

In the motions pending before the Court, the defendants move

for summary judgment against Pajak on all claims pleaded in the

Amended Complaint. ECF Nos. 692, 699. On October 11, 2022, the

Court convened for a hearing. The motions being ripe for decision

and fully considered, the Court makes its rulings herein.

II. FACTS

Pajak initiated this lawsuit after she was discharged by her

employer, Defendant Under Armour Retail, Inc.1 ECF No. 291, Am.

Compl. at 1-2; ECF No. 750 at 2; Ex. D, ECF No. 750-4. Pajak

alleges that after she reported internal complaints of

inappropriate conduct that created a hostile work environment and

subjected the complainants to gender discrimination, she was the

1 The Court views the evidence in the light most favorable to

Pajak, the non-moving party, and draws any reasonable inferences

in Pajak’s favor. Fed. R. Civ. P. 56(a); Henry v. Purnell, 652

F.3d 524, 531 (4th Cir. 2011) (en banc).

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

victim of a retaliatory discharge. ECF No. 291, Am. Compl. at 1-

2.

On November 5, 2013, Under Armour, Inc., hired Pajak as its

Regional Director of the East and Canada regions. Id. ¶¶ 8-9; ECF

No. 750-2, Ex. B, Offer of Employment. Pajak worked remotely from

Bridgeport, West Virginia and reported to the defendant, Brian

Boucher (“Boucher”). ECF No. 291, Am. Compl. ¶¶ 5, 10. According

to Pajak’s state and federal tax documents for the tax year of

2018, she was employed by Under Armour Retail, Inc. ECF No. 750-

2, Ex. E, Form 1095-C & W-2.

In January, April, and November 2018, female employees

reported several instances of inappropriate workplace conduct to

Pajak. The three instances of alleged inappropriate workplace

conduct which prompted Pajak’s alleged protected activity: the

Clarksburg Incident (January 2018), the Yammer Post (April 2018),

and the Listening Session (November 2018). The Clarksburg Incident

allegedly involved a male district manager, Joey McKenna, taking

off his shirt and pretending to do a striptease. Id. ¶ 15. Another

district manager, Brendan Costigan, allegedly made comments about

a female colleague’s appearance. Id. Pajak encouraged these female

employees to submit written statements, which she then provided to

Boucher. Id. ¶ 16.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

In April 2018 (the Yammer Post), Joey McKenna, the same

district manager involved in the January 2018 striptease, posted

photographs of himself posing in a speedo for a body building

competition to a social media site. Id. ¶ 19. Again, a female

employee reported the conduct to Pajak. Id. Boucher felt the

complainant was “overreacting and that there was no issue to

discuss.” Id.

Third, in November 2018 (the Listening Session), the Wall

Street Journal published an article titled, “Under Armour’s #METOO

Moment: No more Strip Clubs on Company Dime.” Id. ¶ 26. In response

to the WSJ article, Founder and CEO Kevin Plank pledged to improve

the company’s culture, and Under Armour scheduled a call with Human

Resource employees and all district managers to conduct an open

forum on the article and address any concerns. Id. ¶ 28. McKenna

reacted to the article by making jokes and down-playing concerns.

Id. After the call, a female employee reached out to Pajak

concerning McKenna’s comments. Id. It was brought to Pajak’s

attention that several other female District Managers felt the

comments by McKenna were inappropriate. Id. ¶ 30. Pajak reported

the complaints, and again, Boucher minimized the employees’

concerns regarding each incident and directed Pajak to “move on.”

Id. ¶¶ 17, 32.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

On June 12, 2018 – five months prior to the Listening Session

- Boucher delivered Pajak’s midyear review, the “Half Time Huddle,”

which raised no concerns about her job performance. Id. ¶ 22. But

a mere nine (9) days later, on June 21, 2018, Boucher,

“unexpectedly and with no warning, called Ms. Pajak saying that he

would like her to make an offer on her terms to leave Under Armour.”

Id. Boucher had not consulted Under Armour’s human resources

department before approaching Pajak. Id. ¶¶ 22-23. Boucher did not

supplement this unexpected offer with documentation of

dissatisfaction regarding Pajak’s performance. Id. Pajak was

surprised by the negative feedback, as Boucher had not criticized

her performance before this. See ECF No. 750-32, Ex. FF. 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.

ECF No. 291, Am. Compl., ¶ 25. Pajak contends Boucher provided no

guidance in the PIP as to what areas of her performance needed to

improve. Id. ¶ 25. 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. On December 10, 2018,

Pajak was fired after her PIP period expired. Id. ¶¶ 9-10, 34.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

Pajak sued on July 16, 2019. Under Armour had knowledge of a

potential civil suit as early as September 2018 and at least by

February of 2019. See ECF No. 294. On February 15, 2019, Pajak’s

counsel “sent Under Armour a demand letter outlining Ms. Pajak’s

claims and notifying the company of impending litigation against

it.” ECF No. 291, Am. Compl., ¶ 36. The letter included “Under

Armour’s evidentiary preservation obligations and instruct[ed]

Under Armour to preserve all forms of potential evidence related

to Ms. Pajak’s claims.” Id. Pajak alleges Defendants failed to

preserve this evidence, and relevant data to Pajak’s claims was

deleted. Id. ¶ 38. Indeed, “while Under Armour at one point had

physical custody of Mr. Boucher’s Under Armour controlled cell

phone, it relinquished custody on March 15, 2019, and now the

device is missing with no explanation for its whereabouts.” Id. ¶

38. While “Under Armour claims it gave the device to Boucher and

Boucher claims he returned it to Under Armour,” it has never been

found and therefore never disclosed in discovery. Id. ¶ 38.

Documents and other information relating to Pajak’s claims,

including text messages involving Pajak, have been erased. Id. ¶¶

39-40.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

III. STANDARD OF REVIEW

Summary judgment is appropriate if “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant

“bears the initial responsibility of informing the district court

of the basis for its motion, and identifying those portions of

‘the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,’ which

it believes demonstrate the absence of a genuine issue of material

fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The

nonmoving party must “make a sufficient showing on an essential

element of its case with respect to which it has the burden of

proof.” Id. at 317–18. Summary judgment is proper “[w]here the

record taken as a whole could not lead a rational trier of fact to

find for the non-moving party, there [being] no ‘genuine issue for

trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986).

This Court has previously summarized the burden imposed on

parties opposing a summary judgment challenge.

However, as the United States Supreme Court

noted in Anderson, “Rule 56(e) itself provides

that a party opposing a properly supported

motion for summary judgment may not rest upon

the mere allegations or denials of his

pleading, but must set forth specific facts

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

showing that there is a genuine issue for

trial.” Id. at 256. “The inquiry performed is

the threshold inquiry of determining whether

there is the need for a trial-whether, in

other words, there are any genuine factual

issues that properly can be resolved only by

a finder of fact because they may reasonably

be resolved in favor of either party.” Id. at

250; see also Charbonnages de France v. Smith,

597 F.2d 406, 414 (4th Cir. 1979) (Summary

judgment “should be granted only in those

cases where it is perfectly clear that no

issue of fact is involved and inquiry into the

facts is not desirable to clarify the

application of the law.” (citing Stevens v.

Howard D. Johnson Co., 181 F.2d 390, 394 (4th

Cir. 1950)).

In reviewing the supported underlying facts,

all inferences must be viewed in the light

most favorable to the party opposing the

motion. See Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Additionally, the party opposing summary

judgment “must do more than simply show that

there is some metaphysical doubt as to the

material facts.” Id. at 586. That is, once the

movant has met its burden to show absence of

material fact, the party opposing summary

judgment must then come forward with

affidavits or other evidence demonstrating

there is indeed a genuine issue for trial.

Fed. R. Civ. P. 56(c); Celotex Corp., 477 U.S.

at 323–25; Anderson, 477 U.S. at 248. “If the

evidence is merely colorable, or is not

significantly probative, summary judgment may

be granted.” Anderson, 477 U.S. at 249

(citations omitted).

Watson v. Warden, FCI Hazelton, Civil Action No. 2:16-CV-76, 2017

WL 1955532, at *2 (N.D.W. Va. May 11, 2017) (Bailey, J.). The Court

views the evidence in the light most favorable to Plaintiff, the

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

non-moving party, and draws any reasonable inferences in

Plaintiff’s favor. Fed. R. Civ. P. 56(a); Henry v. Purnell, 652

F.3d 524, 531 (4th Cir. 2011) (en banc).

IV. DISCUSSION

In his Memorandum of Law in Support of Summary Judgment [ECF

No. 693], Boucher joins in Under Armour’s Motion for Summary

Judgment [ECF Nos. 699, 716], stating “their interests on those

issues are aligned.” Therefore, the Court will address the

arguments raised in the motions together.

A. The West Virginia Human Rights Act (“WVHRA”) violations,

W. Va. Code 5-11-9.

1. Defendant Under Armour Retail, Inc., is not subject to

the WVHRA.

Under the WVHRA, “[t]he term ‘person’ means one or more

individuals, partnerships, associations, organizations,

corporations, labor organizations, cooperatives, legal

representatives, trustees, trustees in bankruptcy, receivers and

other organized groups of persons.” W. Va. Code § 5-11-3(a). “[T]he

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).

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

This numerosity requirement is “clear and unambiguous.” Williamson

v. Greene, 490 S.E.2d 23, 28 (W. Va. 1997).

In this action, the Supreme Court of Appeals of West Virginia

answered a certified question regarding WVHRA’s application to the

Under Armour defendants named in the action, specifically whether,

“in the context of an employee/employing entity, [] 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.’” Pajak v. Under

Armour, Inc., 873 S.E.2d 918, 922 (W. Va. 2022). The Court held:

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), may not 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).

Id., Syl. Pt. 5.

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.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

Id. at 922. The Supreme Court of Appeals did not differentiate

between Under Armour Retail, Inc., and Under Armour, Inc., in its

Opinion. Indeed, the Court begins by describing the parties as

“Petitioner, Ms. Cynthia D. Pajak (“Ms. Pajak”)” as the person

hired by “the respondents, Under Armour, Inc. and/or Under Armour

Retail, Inc. (collectively “Under Armour”).” Id. at 920.

Since April 2022, however, the parties have attempted to

clarify who Pajak’s employer is in this case. At the October 11,

2022, hearing, the parties agreed that Defendant Under Armour

Retail, Inc., is Pajak’s employer. Therefore, according to the

Supreme Court of Appeals’ answer to the certified question, and by

this Court’s prior findings regarding both Under Armour, Inc., and

Under Armour Retail, Inc., falling short of the WVHRA numerosity

requirement,2 Defendant Under Armour Retail, Inc. (Pajak’s

employer) is not a covered employer – or a person - under the

WVHRA. Defendants’ Motions for Summary Judgment [ECF Nos. 692,

699] are GRANTED as to Pajak’s claim for WVHRA violations against

Defendant Under Armour Retail, Inc., because, though her employer,

it does not meet the statutory requirements to be considered an

“employer” under the WVHRA, and “may not be potentially liable to

2 The numerosity requirement is found in W. Va. Code § 5-11-3(d):

“[T]he term ‘employer’ means . . . any person employing twelve or

more persons within the state . . . .”

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

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its own employee as a ‘person.’”. Pajak v. Under Armour, Inc., 873

S.E.2d 918 (W. Va. 2022); see also ECF No. 438.

2. Defendant Under Armour, Inc., is subject to the WVHRA as

a person, and Pajak established a link between her

alleged protected activity and the discharge to defeat

summary judgment on this claim.

The Court must next consider whether Under Armour, Inc., is

subject to liability under the WVHRA. Under Armour argues Pajak

failed to allege that Under Armour, Inc., can qualify as a person

under the Act and that the Court should not allow her to “salvage

her only fee-shifting claim.” ECF No. 716 at 25. “When faced with

a statutory provision, the starting point for any issue of

statutory interpretation . . . is the language of the statute

itself.” Redeemed Christian Church of God (Victory Temple) Bowie,

Md. v. Prince George’s Cty., 17 F.4th 497, 508 (4th Cir. 2021)

(internal citation and quotation marks omitted). “[P]lain and

unambiguous meaning” of the statute controls. Id.

Again, the Court has already found Under Armour, Inc., is not

an employer under the Act because it fails to meet the numerosity

requirement of having twelve or more employees working in the

state. Importantly, only one person employed by Under Armour, Inc.,

lives in West Virginia. ECF No. 1-2 at 2, Decl. Loren Pearl; ECF

No. 671-5, Ex. C. The parties have determined through discovery

that Under Armour Retail, Inc., and not Under Armour, Inc., is

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

Pajak’s employer. Because Under Armour, Inc., is not Pajak’s

employer, the Court must determine whether it is a “person” as

defined in W. Va. Code § 5-11-3(a).

The Court finds Under Armour, Inc. is a person under the Act:

“one or more individuals, partnerships, associations,

organizations, corporations, labor organizations, cooperatives,

legal representatives, trustees, trustees in bankruptcy, receivers

and other organized groups of persons.” W. Va. Code § 5-11-3(a)

(emphasis added). This Court has previously noted a parent company

of a defendant employer “qualifies as a ‘person’ against whom an

aiding and abetting action may be filed under the HRA.” Larry v.

Marion Cnty. Coal Co., 302 F.Supp.3d 763, 776 n.1 (N.D.W. Va.

2018).

It shall be an unlawful discriminatory

practice . . . (7) For any person, employer,

employment agency, labor organization, owner,

real estate broker, real estate salesman or

financial institution to: (A) Engage in any

form of threats or reprisal, or to engage in,

or hire, or conspire with others to commit

acts or activities of any nature, the purpose

of which is to harass, degrade, embarrass or

cause physical harm or economic loss or to

aid, abet, incite, compel or coerce any person

to engage in any of the unlawful

discriminatory practices defined in this

section[.]

W. Va. Code § 5-11-9(7)(A). “[Restatement (Second)] §

876(b) concludes that aiding and abetting liability occurs when

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

the actor ‘knows the other’s conduct constitutes a breach of duty

and gives substantial assistance or encouragement to the other.’”

Larry, 302 F.Supp.3d at 777. It is undisputed that Under Armour,

Inc., is made up of “one or more individuals.” ECF No. 671-5, Ex.

C; ECF No. 671-6, Ex. D. Clearly, by the statute’s plain and

unambiguous meaning, Under Armour, Inc., is subject to the WVHRA

as a “person.” Therefore, the Motions for Summary Judgment [ECF

Nos. 692, 699] are DENIED on this ground as to Defendant Under

Armour, Inc.

Under Armour argues that, even if Under Armour, Inc., is

subject to the WVHRA, which the Court finds it is, Pajak has failed

to establish a prima facie case for retaliatory discharge.

In order to set forth a prima facie case of

impermissible employment discrimination under

the [WVHRA], a plaintiff must establish the

following: (1) that she is a member of a

protected class; (2) that the employer made an

adverse employment decision affecting her; and

(3) that, but for her protected status, the

employer would not have made the adverse

decision. Syl. pt. 3, Conaway v. E. Associated

Coal Corp., 178 W.Va. 164, 358 S.E.2d 423, 429

(1986).

Larry, 302 F.Supp.3d at 770. Under Armour, Inc., disputes the third

element: whether Pajak established a link between her alleged

protected activity and the discharge.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

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Pajak has submitted evidence of Under Armour, Inc. “aiding

and abetting,” thus establishing the link between the protected

activity and the discharge, that requires denial of summary

judgment as to Under Armour, Inc. Both Under Armour, Inc., and

Pajak have presented evidence that Under Armour, Inc., knew Pajak’s

firing was discriminatory. The Amended Complaint includes Count

Two, violations of the WVHRA, against “all Defendants.” ECF No.

291, Am. Compl. ¶ 60. Pajak alleges liability against both Under

Armour defendants – even though Under Armour Retail, Inc. is

dismissed from the claim - and cites W. Va. Code § 5-11-9(7) as

basis for her cause of action, which includes the “aiding and

abetting” language as applied to any person or employer. Id. ¶ 61.

Under Armour, Inc., is the 100% owner of Under Armour Retail, Inc.

ECF No. 750-1, Ex. A. George Hanson (Under Armour, Inc.’s North

America Ecommerce unit) and Melisa Miller (Under Armour, Inc.’s

Global Revenue Support unit) were both affiliated with Under

Armour, Inc., and “participated in reviewing Pajak’s performance

and the decision to terminate her employment.” ECF No. 716 at 30;

ECF No. 671-6, Ex. D.

Evidence exists supporting the link between her alleged

protected activity and her employment discharge which requires

consideration by the jury. Pajak was promoted in 2016 and received

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a “meets UA’s high expectations” review in 2017. ECF No. 750-12,

Ex. L; ECF No. 750-13, Ex. M. Unbeknownst to Pajak, in May 2018,

Boucher relayed to James Toner, an employee of Under Armour Retail,

Inc. in the North America Retail unit, that Pajak’s role with the

company “isn’t the role for her any longer.” ECF No. 750-29, Ex.

CC. Just one month later in June 2018, Pajak attended a “half time

huddle” with Boucher, and reported her feedback was positive and

no concerns regarding her performance were mentioned. After the

half time huddle, and after Pajak had raised concern over the

Clarksburg Incident and Yammer Post, Boucher sent messages to James

Toner and George Hanson about firing Pajak. Boucher relayed to Mr.

Toner that he had “[c]onnected with [George Hanson.] He is aligned

to separating immediately via a package.” ECF No. 750-29 at 13,

Ex. CC. Mr. Toner also indicated he had been in contact with Melisa

Miller of Under Armour, Inc. about Pajak’s severance package. Id.

After this correspondence, Boucher called Pajak on June 21, 2018,

and criticized her job performance and told her to look for a new

job.

Pajak was put on a performance improvement plan (“PIP”) on

September 10, 2018, by the suggestion of Human Resources. During

the PIP, Hanson was made aware of Boucher’s intention to push her

out of employment by October. ECF No. 750-30, Ex. DD. On November

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2, 2018, Boucher updated Hanson that Pajak had 30 days left on the

PIP, and that HR – Melisa Miller of Under Armour, Inc. – would not

allow Boucher to offer Pajak severance but that “[s]he will be out

of the business on 12/10.” ECF No. 750-30, Ex. DD.

Defendant Under Armour, Inc., fails to show there is no

genuine dispute as to any material fact and that it is entitled to

judgment as a matter of law on this issue. Fed. R. Civ. P. 56(a).

There is ample evidence in the record to establish a prima facie

case that Under Armour, Inc., knew Boucher and Under Armour Retail,

Inc., were engaging in a discriminatory firing of Pajak. Multiple

conversations between Boucher, Toner, Miller, and Hanson were had

about Pajak’s firing. Viewing the evidence in the light most

favorable to Pajak, including all reasonable inferences drawn in

her favor, the record reveals Under Armour, Inc., itself gave

“substantial assistance or encouragement” to those defendants by

charging its employees with responsibility to make the firing

decision. Larry, 302 F.Supp.3d at 777. Summary judgment is DENIED

on this issue.

3. Defendant Brian Boucher is subject to the WVHRA as a

person.

Turning to Defendant Boucher, the Court determines he, like

Defendant Under Armour, Inc., is subject to liability under the

WVHRA as a “person.” Boucher contends that if his employer cannot

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be held responsible under the “WVHRA due to the numerosity

requirement, then neither could he be so covered as his only

relation to Pajak was as her supervisor for a non-covered employer

and he never worked within the state of West Virginia.” ECF No.

692 at 3.

Boucher’s reasoning holds little weight. “[A] cause of action

[under the WVHRA] may properly be based upon an allegation that

the defendant employee aided or abetted an employer engaging in

unlawful discriminatory practices.” Syl. Pt. 4, Holstein v.

Norandex, Inc., 461 S.E.2d 473, 474 (W. Va. 1995). In the June 11,

2021, Memorandum Order and Opinion Denying Brian Boucher’s Motion

to Certify Question to the West Virginia Supreme Court of Appeals,

Judge Keeley previously declared:

As an individual, Boucher is a “person” to

whom the WVHRA applies. This is so regardless

of the fact that he only interacted with Pajak

as an Under Armour employee and the WVHRA may

not apply to Under Armour. See Holstein, 461

S.E.2d at 476 (holding that the plaintiff’s

former manager was a “person” who aided and

abetted their employer’s unlawful act of

discrimination). Despite Boucher’s contention

otherwise, the WVHRA does not require the

plaintiff’s employer to be found liable prior

to a plaintiff’s assertion of supervisory

liability. As such, it would be inappropriate

for the Court to read such a requirement into

the WVHRA. See Banker v. Banker, 474 S.E.2d

265, 476-477 (W. Va. 1996) (“It is not for

[courts] arbitrarily to read into [a statute]

that which it does not say.”).

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ECF No. 439 at 4-5. The same remains true. There has been no new

evidence presented for the Court to consider on this issue as to

Defendant Boucher. Therefore, for the same reasons the Court finds

Under Armour, Inc., is not entitled to summary judgment on this

issue, the Motions for Summary Judgment [ECF Nos. 692, 699] are

DENIED as to Defendant Boucher because he is a person to whom the

WVHRA applies.

B. Common Law Retaliatory Discharge Claim under Harless v.

First Nat’l Bank of Fairmont, 246 S.E.2d 270 (W. Va. 1978).

1. Under Armour Retail, Inc. fails to show there is no

genuine dispute as to any material fact and that it is

entitled to judgment as a matter of law on Pajak’s

Harless claim.

At the crux of Pajak’s lawsuit are her common law claims for

retaliatory discharge. ECF No. 291, Am. Compl. ¶¶ 50-58. She

alleges the Harless claim against all defendants. Id.

The rule that an employer has an absolute

right to discharge an at will employee must be

tempered by the principle that where the

employer’s motivation for the discharge is to

contravene some substantial public policy

principle, then the employer may be liable to

the employee for damages occasioned by this

discharge.

Syl., Harless v. First Nat’l Bank of Fairmont, 246 S.E.2d 270 (W.

Va. 1978).

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

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At trial, Pajak must prove the following elements: (1) “[t]hat

a clear public policy existed and was manifested in a state or

federal constitution, statute or administrative regulation, or in

the common law”; (2) “[t]hat dismissing employees under

circumstances like those involved in the plaintiff’s dismissal

would jeopardize the public policy”; (3) “[t]he plaintiff’s

dismissal was motivated by conduct related to the public policy”;

and (4) “[t]he employer lacked overriding legitimate business

justification for the dismissal.” Burke v. Wetzel Cnty. Comm’n,

815 S.E.2d 520, 537 (W. Va. 2018).

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.

Syl. Pt. 4, Birthisel v. Tri-Cities Health Servs. Corp., 424 S.E.2d

606 (W. Va. 1992) (internal citation omitted).

Turning to elements one and two of Burke, Defendants argue

Pajak’s reports regarding the April 2018 Yammer Post are not

protected by a substantial public policy. Pajak easily defeats

Defendants’ motions for summary judgment here as the law has been

settled since 1997. The public policy sources Pajak identified in

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

her Amended Complaint are the West Virginia Human Rights Act

(“WVHRA”), W. Va. Code § 5-11-9, and other statutes and the common

law of West Virginia. ECF No. 291, Am. Compl ¶ 53. “The West

Virginia Human Rights Act establishes a clear and unequivocal

public policy against sex discrimination in employment and

retaliatory discharge based thereon.” Williamson v. Greene, 490

S.E.2d 23, 32 (W. Va. 1997). Here, like in Williamson, Pajak cannot

maintain a statutory WVHRA claim against her employer, Under Armour

Retail, Inc.; however, the WVHRA “sets forth a clear statement of

public policy sufficient to support a common law claim for

retaliatory discharge against an employer . . . exempted by [the

WVHRA].” Id. at 33. Therefore, “the discharged employee may

nevertheless maintain a common law claim for retaliatory discharge

against the employer based on alleged sex discrimination or sexual

harassment because sex discrimination and sexual harassment in

employment contravene the public policy of this State articulated

in the West Virginia Human Rights Act.” Id.

Specifically, Pajak alleges she “is female and suffered

retaliation, harassment, and discrimination because of her sex, in

that Defendants were guilty of allowing a hostile work environment

to occur in Under Armour’s workplace.” ECF No. 291, Am. Compl., ¶

52. “Ms. Pajak was discharged on December 10, 2018, because she

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

reported sexual misconduct and other workplace misconduct that

violated the substantial public policy of West Virginia and Under

Armour’s own policies.” Id. ¶ 55. The pleaded facts and testimony

in support show a series of instances of alleged protected activity

relevant and sufficiently proximate to the retaliatory discharge

that would jeopardize the public policy. Pajak has identified the

existence of a clear public policy and that her alleged retaliatory

discharge would jeopardize the policy. Elements one and two of

Burke, therefore, are met.

As to the third Burke factor, “motive issues [in employment

law cases] ordinarily present classic questions of fact.” Tiernan

v. Charleston Area Med. Ctr., Inc., 575 S.E.2d 618, 622 (W. Va.

2002) (internal quotation marks omitted).

[T]he issue of discriminatory animus is

generally a question of fact for the trier of

fact, especially where a prima facie case

exists. The issue does not become a question

of law unless only one conclusion could be

drawn from the record in the case. In an

employment discrimination context, the

employer must persuade the court that even if

all of the inferences that could reasonably be

drawn from the evidentiary materials of the

record were viewed in the light most favorable

to the employee, no reasonable jury could find

for the plaintiff.

Conrad v. ARA Szabo, 480 S.E.2d 801, 809 (W. Va. 1996).

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

Pajak meets the “de minimus initial burden of showing

circumstances giving rise to an inference of discrimination” and

survives summary judgment here. Hanlon v. Chambers, 464 S.E.2d

741, 748 (W. Va. 1995). There remains a genuine issue of material

fact for a jury to decide whether Pajak “express[ed] opposition to

a series of incidents related in several ways that she reasonably

and in good faith believed constituted sexual harassment and

hostile work environment.” ECF No. 750 at 23.

Defendants take most issue with Pajak’s Harless allegations

as they relate to the April 2018 Yammer Post incident. In April

2018, the same district manager involved in the January 2018

striptease (Clarksburg Incident) posted photographs of himself in

a speedo posing in a body building competition to a social media

site. ECF No. 291, Am. Compl. ¶ 19. When Pajak reported this,

Boucher minimized the reporting employees’ concerns regarding the

Yammer Post incident and directed Pajak to “move on.” Id. ¶¶ 17,

32. The history of Pajak’s overall satisfactory performance at

Under Armour Retail, Inc., coupled with the timeline of the three

incidents and alleged discriminatory events that followed, defeat

summary judgment. Pajak was promoted in 2016 and received a “meets

UA’s high expectations” review in 2017. ECF No. 750-12, Ex. L; ECF

No. 750-13, Ex. M. In May 2018, Boucher relayed to James Toner, an

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

employee of Under Armour Retail, Inc., that Pajak’s role with the

company “isn’t the role for her any longer.” ECF No. 750-29, Ex.

CC. One short month later, Pajak’s half time huddle with Boucher

resulted in positive feedback and no criticism of her performance

at Under Armour Retail, Inc. After the half time huddle, and after

Pajak had raised concern over the Clarksburg Incident and Yammer

Post, Boucher sent messages to James Toner and George Hanson -

Under Armour, Inc.’s North America Ecommerce unit - about firing

Pajak. Boucher then called Pajak, criticized her job performance,

and told her to look for a new job.

“[C]lose temporal proximity weighs heavily in favor of

finding a genuine dispute as to causation.” Jacobs v. N.C. Admin.

Off. of the Cts., 780 F.3d 562, 575 (4th Cir. 2015); see also

Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 126 (4th Cir.

2021) (“An adverse action that bears sufficient temporal proximity

to a protected activity may, along with the existence of other

facts, suggest that the adverse employment action occurred because

of the protected activity.”) (citation omitted). The almost one-

year lapse between the first sexual harassment incident report

(January 2018) and Pajak’s termination (December 2018) is not the

only factor the Court must consider here in determining the third

Burke factor. Upon being surprised by Boucher’s negative feedback,

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

Pajak declined to leave her position at Under Armour. See ECF No.

750-32, Ex. FF. On September 10, 2018, Boucher placed her on the

sixty-day PIP, although the typical PIP period at Under Armour is

ninety days. ECF No. 291, Am. Compl., ¶ 25. Pajak contends Boucher

provided no guidance in the PIP as to what areas of her performance

needed to improve, nor did he meet with Pajak during the PIP period

other than one time upon her own request. Id. ¶ 25. Regardless,

during the PIP period, Boucher intended to terminate Pajak by

October. ECF No. 750-30, Ex. DD. On November 2, 2018, Boucher

updated Hanson that Pajak had 30 days left on the PIP, and that HR

– Melisa Miller of Under Armour, Inc. – would not allow Boucher to

offer Pajak a severance package but that “[s]he will be out of the

business on 12/10.” ECF No. 750-30, Ex. DD. Upon expiration of the

PIP, Pajak was fired. ECF No. 291, Am. Compl., ¶¶ 9-10, 34. Drawing

all reasonable inferences in Pajak’s favor, Pajak has produced

sufficient affirmative evidence from which a reasonable jury could

conclude that she was terminated because of her sex and her reports

of sexual harassment in the workplace.

Finally, Under Armour Retail, Inc., has not shown an

“overriding legitimate business justification of the dismissal.”

Burke v. Wetzel Cnty. Comm’n, 815 S.E.2d 520, 537 (W. Va. 2018).

Defendants claim that Pajak’s performance is to blame for her

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

employment termination. ECF No. 716 at 22. Having been promoted in

late 2016, produced a “meets UA’s high expectations” review in

2017, and given positive reviews throughout the year of 2018 until

her first negative feedback on June 21, 2018, Pajak’s employment

history with Under Armour fails to show her performance deficit at

summary judgment stage. ECF No. 750-12, Ex. L; ECF No. 750-13, Ex.

M. The reasonable inferences available from the circumstances most

certainly satisfy Pajak’s burden at this stage. See Hanlon, 464

S.E.2d at 748 (describing plaintiff’s burden to show circumstances

give rise to inference of unlawful motivation as de minimis)

(quoting Cronin v. Aetna Life Ins., Co., 46 F.3d 196, 204 (2d Cir.

1995)). Defendants’ motions for summary judgment [ECF Nos. 692,

699] are DENIED on this ground as to Defendant Under Armour Retail,

Inc., Pajak’s employer.

2. Under Armour, Inc., and Boucher are entitled to judgment

as a matter of law on Pajak’s common law Harless claim.

“[F]ederal courts in West Virginia have repeatedly held that

a plaintiff cannot maintain both a Harless-based common law action

and a WVHRA claim based on the same conduct.” Romans v. Wayne Cnty.

Comm’n, No. 3:20-0797, 2021 WL 4005614, *5 (S.D.W. Va. Sept. 2,

2021) (citing Adkins v. Cello P’ship, Inc., No. 3:17-2772, 2017 WL

2961377, at *3 (S.D.W. Va. July 11, 2017)) (internal quotation

marks omitted); see also Seavolt v. Variform, Inc., No. 3:19-CV-

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

136, 2020 WL 6146574, *7 (N.D.W. Va. Mar. 11, 2020) (granting, in

part, a motion for judgment on the pleadings because “West Virginia

federal district courts have repeatedly found that a plaintiff

cannot maintain a Harless-type common law action and

a WVHRA claim based on the same conduct.”) (citing Adkins at *3).

Because this Court has found Defendants Boucher and Under

Armour, Inc., subject to the WVHRA as persons under the act, and

therefore subject to statutory liability as individuals, Pajak

cannot maintain both the Harless claim and WVHRA claim against

them. Pajak’s Harless claim against Under Armour, Inc., and Boucher

is based on the public policies of the WVHRA.3 Therefore, as a

matter of law, Pajak cannot maintain the common law cause of action

for wrongful discharge against these defendants for the same

conduct or same theory. Defendants’ Motions for Summary Judgment

[ECF Nos. 692, 699] are GRANTED as to Defendants Boucher and Under

Armour, Inc., on Pajak’s common law Harless claim.

3 While Pajak refers to “other statutes and the common law of West

Virginia” in her Amended Complaint to allege wrongful discharge

under Harless against all three defendants, she has failed to

identify an source of public policy, other than the West Virginia

Human Rights Act. ECF No. 291, Am. Compl. ¶ 53. A brief mention in

the Amended Complaint, and no factual support or legal authority

in her response to motions for summary judgment, is inadequate to

salvage this claim.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

C. Intentional Infliction of Emotional Distress

1. Defendant Under Armour Retail, Inc., Pajak’s employer,

enjoys West Virginia Workers’ Compensation Act immunity

for the intentional infliction of emotional distress

claim and, therefore, is entitled to judgment as a matter

of law.

Pajak pleads intentional infliction of emotional distress or

the tort of outrage against all three named defendants. ECF No.

291, Am. Compl., ¶¶ 73-78.

An

intentional infliction of emotional distress

claim[] require[s] that a plaintiff suffer

‘severe emotional distress’ in order to be

successful. See Minshall v. Health Care

Retirement Corp. of Am., 208 W.Va. 4, 9, 537

S.E.2d 320 (2000) (setting forth elements of

intentional infliction of emotional distress

claim, the fourth element being that “the

emotional distress was severe”)

(quoting Harless v. First Nat'l Bank in

Fairmont, 169 W.Va. 673, 289 S.E.2d 692

(1982)), and Marlin v. Bill Rich Constr., 198

W.Va. 635, 652, 482 S.E.2d 620 (1996) (“A

claim for emotional distress without an

accompanying physical injury can only be

successfully maintained upon a showing by the

plaintiffs in such an action of facts

sufficient to guarantee that the claim is not

spurious and upon a showing that the emotional

distress is undoubtedly real and serious.”)

Councell v. Homer Laughlin China Co., 823 F.Supp.2d 370, 383

(N.D.W. Va. 2011). Evidence of outrageous conduct must also be

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DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

alleged. Id. at 384. “Additionally, the actual act of terminating

an employee for an invidious cause cannot be grounds for

‘outrageous’ conduct under West Virginia law.” Id. (quoting syl.

pt. 2, Dzinglski v. Weirton Steel Corp., 445 S.E.2d 219 (W. Va.

1994)). Notwithstanding whether Pajak proved her prima facie case

of intentional infliction of emotional distress (“IIED”),

Defendants argue the tort of IIED is barred by the West Virginia

Workers’ Compensation Act (“WCA”) as to Defendant Under Armour

Retail, Inc.

Subject to certain limitations, the WCA confers

responsibility to the employer to pay its employees, through the

Workers’ Compensation Fund, “who have received personal injuries

in the course of and resulting from their covered employment.” W.

Va. Code § 23-4-1(a). An employer is “not liable to respond in

damages at common law or by statute for injury” caused by

employer’s negligence, if the employer is otherwise in compliance

with the Act. Id. § 23-6-2; see also Canterbury v. Valley Bell

Dairy Co., 95 S.E.2d 73, 75 (W. Va. 1956).

As the West Virginia Supreme Court of Appeals

has explained,

the workers’ compensation system was

“designed to release both an employer and its

employees from common-law rules of liability

and damage, protect an employer from expensive

and unpredictable litigation, and provide

compensation for injuries to employees without

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

the burdensome requirements of proving common-

law negligence.”

United Fin. Cas. Co. v. Ball, 941 F.3d 710, 714 (4th Cir. 2019)

(quoting Erie Ins. Prop. & Cas. Co. v. Stage Show Pizza, JTS, Inc.,

553 S.E.2d 257, 262 (W. Va. 2001)).

Judge Stamp dismissed allegations of intentional tort claims

for intentional infliction of emotional distress or the tort of

outrage because they failed to satisfy the deliberate intent

exception to WCA’s immunity, having not been pleaded with the

specific intent required.

The Workers’ Compensation Act creates

“sweeping immunity” for employers from all

tort negligence actions by employees for

injuries, including emotional distress, that

occur “in the course of and resulting from

employment.” Bias v. Eastern Associated Coal

Corp., 220 W. Va. 190, 194–96, 640 S.E.2d 540

(2006); W. Va. Code § 23–4–1. The plaintiffs

argue that the emotional distress claimed in

this action was not a result of a workplace

incident or accident, but instead was a result

of Ms. Councell’s termination. While true, the

plaintiffs misunderstand the breadth of the

West Virginia Workers’ Compensation Act in

that it provides almost complete immunity from

common law tort liability for negligently

inflicted injuries to employees as a result of

their employment. State ex rel. Frazier v.

Hrko, 203 W. Va. 652, 659, 510 S.E.2d 486

(1998) (“The employer is entitled to immunity

for any injury occurring to an employee and

‘shall not be liable to respond in damages at

common law or by statute.’” (quoting W. Va.

Code § 23–2–6)). Emotional distress which

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

results from termination from employment does,

in turn, result of employment.

However, exceptions to employer immunity for

injuries to employees under the Workers'

Compensation Act, while extremely narrow, do

exist. See Bias, 220 W. Va. at 194, 640 S.E.2d

540. One of these narrow exceptions is “when

an employer has deliberately intended to cause

injury or death to an employee.” Id. While the

plaintiffs do plead the broad tort of

intentional infliction of emotional distress,

such a broad pleading of this intentional tort

is insufficient to plead deliberate intention

to cause injury. Weirton Health Partners, LLC

v. Yates, 2010 WL 785647, *6, 2010 U.S. Dist.

LEXIS 19951, *16–17 (N.D.W. Va. Mar. 4, 2010).

In Weirton Health Partners, this Court found

that, in order for an intentional infliction

of emotional distress claim to fall outside of

the immunity provisions of the West Virginia

Workers' Compensation Act, the plaintiff must

plead facts that suggest “‘an actual, specific

intent,’” and liability cannot result from

“‘(A) Conduct which produces a result not

specifically intended; (B) conduct that

constitutes negligence, no matter how gross or

aggravated; or (C) willful, wanton or reckless

misconduct.’” Id. at *6, 2010 U.S. Dist. LEXIS

19951, at *17 (quoting W. Va. Code § 23–4–

2(d)(2)(I)).

Councell v. Homer Laughlin China Co., 823 F.Supp.2d 370, 384

(N.D.W. Va. 2011).

It remains undisputed that Pajak has not pleaded a deliberate

intent claim against her employer, Under Armour Retail, Inc.

W. Va. Code [] 23-2-6a [1949] extends the

employer’s immunity from liability set forth

in W. Va. Code [] 23-2-6 [1991] to the

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DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

employer’s officer, manager, agent,

representative or employee when he is acting

in furtherance of the employer’s business and

does not inflict an injury with deliberate

intention. Syllabus point 4, Henderson v.

Meredith Lumber Co., Inc., 190 W.Va. 292, 438

S.E.2d 324 (1993).

Syl. Pt. 1, Wisman v. William J. Rhodes and Shamblin Stone, Inc.,

447 S.E.2d 5 (W. Va. 1994). While Pajak has not pleaded a

deliberate intent claim against her employer, Under Armour Retail,

Inc., and has therefore failed to allege the specific intent

required under W. Va. Code § 23-4-2(d). Pajak’s IIED claim against

Under Armour Retail, Inc., fails, and summary judgment is GRANTED.

2. There is no genuine dispute of material fact on the

intentional infliction of emotional distress claim

against Defendants Under Armour, Inc., and Boucher, and

they are entitled to judgment as a matter of law.

Pajak’s claim for intentional infliction of emotional

distress or the tort of outrage against Defendants Boucher and

Under Armour, Inc., “fails to allege that such action was

undertaken with specific intent of causing [her] injury.” Brevard

v. Racing Corp. of W. Virginia, No. 2:19-cv-578, 2020 WL 1860713

at *7 (S.D.W. Va. Apr. 13, 2020). “[W]hen the employee’s distress

results from the fact of his discharge—e.g., the embarrassment and

financial loss stemming from the plaintiff’s firing—rather than

from any improper conduct on the part of the employer in effecting

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

the discharge, then no claim for intentional infliction of

emotional distress can attach.” Syl. Pt. 2, Dzinglski v. Weirton

Steel Corp., 445 S.E.2d 219 (W. Va. 1994).

Pajak pleads that Defendants, in effecting the alleged

retaliatory discharge, “acted with the intent to inflict emotional

distress, or acted recklessly when it was certain or substantially

certain emotional distress would result from their conduct.” ECF

No. 291, Am. Compl. ¶¶ 74-75. But no facts support this allegation.

Instead, Pajak spends considerable time outlining the factual

allegations, and discovering the same, to support her retaliatory

discharge claim, not the IIED claim. The discovery has revealed

alleged discriminatory events – that she reported - throughout her

employment with Under Armour Retail, Inc. However, the discharge

alone is the basis for her IIED cause of action and the conduct

alleged fails to rise to the level of extreme and outrageous

conduct required to survive a motion for summary judgment. As

inflammatory as the Clarksburg, Yammer Post, and Listening Session

incidents – the incidents which support her retaliatory discharge

claim - may have been to the complainants, they do not support

Pajak’s IIED claim. Pajak has failed to show evidence of outrageous

conduct with respect to her alleged retaliatory discharge. There

is no evidence that her retaliatory discharge “was undertaken with

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DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

specific intent of causing [her] injury.” Brevard, at *7.

Furthermore, the damages available to Pajak under the retaliatory

discharge claim mirror those available under the IIED claim. See

Dzinglski, 445 S.E.2d at 229. Accordingly, Defendants’ Motions for

Summary Judgment [ECF Nos. 692, 699] are GRANTED on this ground as

to Defendant Boucher and Under Armour, Inc.

D. Negligent Hiring, Supervision, and Retention.

Remaining is Defendants’ argument for summary judgment

against Pajak’s negligence claims. Pajak alleges claims of

negligent hiring, supervision, and retention against Defendants

Under Armour, Inc. and Under Armour Retail, Inc. ECF No. 291, Am.

Compl., ¶¶ 66-72. Defendants’ motions for summary judgment are

GRANTED on the negligent hiring and supervision claims and DENIED

on the negligent retention claim.

1. There is no genuine dispute of material fact and

Defendants Under Armour, Inc. and Under Armour Retail,

Inc., are entitled to judgment as a matter of law on

Pajak’s negligent hiring claim.

Pajak claims that Defendants Under Armour, Inc., and Under

Armour Retail, Inc., negligently hired Boucher “as an employee,

agent, and supervisor despite the Defendants’ knowledge that

Defendant Boucher has repeatedly, intentionally, maliciously and

grossly violated Plaintiff’s rights as protected under the [WVHRA]

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

and other applicable laws.” ECF No. 291, Am. Compl., ¶ 67.

Defendants move for summary judgment on this claim, stating that

Pajak has not produced evidence supporting a claim for negligent

hiring. ECF No. 671 at 34. Pajak did not respond to this argument

and instead focused her opposition on the negligent retention

theory (discussed infra).

[A] fair formulation of the inquiry upon which

liability for negligent hiring or retention

should be determined is: “when the employee

was hired or retained, did the employer

conduct a reasonable investigation into the

employee's background vis a vis the job for

which the employee was hired and the possible

risk of harm or injury to co-workers or third

parties that could result from the conduct of

an unfit employee? Should the employer have

reasonably foreseen the risk caused

by hiring or retaining an unfit person?”

McCormick v. West Virginia Dep’t of Pub. Safety, 503 S.E.2d 502,

507 (W. Va. 1998) (internal citation omitted). There has been no

evidence presented of either Defendants Under Armour, Inc., or

Under Armour Retail, Inc.’s, negligent hiring of Defendant

Boucher. Plaintiff has failed to allege or marshal sufficient facts

at this stage the Under Armour defendants did not conduct a

reasonable investigation into Boucher’s background or that the

possible risk of harm or injury was reasonably foreseeable by

hiring Boucher. Defendants Under Armour, Inc., and Under Armour

Retail, Inc. are entitled to summary judgment on Pajak’s claim for

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DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

negligent hiring because there is no genuine dispute as to any

material fact for the jury to resolve, and they are entitled to

judgment as a matter of law. Summary Judgment [ECF Nos. 692, 699]

is GRANTED on the negligent hiring claim.

2. There is no genuine dispute of material fact and

Defendants Under Armour, Inc. and Under Armour Retail,

Inc., are entitled to judgment as a matter of law on

Pajak’s negligent supervision claim.

Pajak claims that Defendants Under Armour, Inc., and Under

Armour Retail, Inc., negligently supervised Boucher “as an

employee, agent, and supervisor despite the Defendants’ knowledge

that Defendant Boucher has repeatedly, intentionally, maliciously

and grossly violated Plaintiff’s rights as protected under the

[WVHRA] and other applicable laws.” ECF No. 291, Am. Compl., ¶ 67.

Defendants moved for summary judgment on this claim, stating that

Pajak has not produced evidence supporting her claim for negligent

supervision, and, again, Pajak did not respond to Defendants’

argument. ECF No. 671 at 34.

“Plaintiffs alleging negligent supervision or training must

first make an underlying showing of a negligence claim as to an

employee, and then demonstrate that the employee was negligently

trained or supervised.” Launi v. Hampshire Cnty. Prosecuting

Attorney’s Off., 480 F.Supp.3d 724 (N.D.W. Va. 2020) (internal

citation omitted). Pajak’s claim for negligent supervision against

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DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

the Under Armour defendants requires a showing that they “failed

to properly supervise [Boucher] and, as a result, [Boucher]

committed a negligent act which proximately caused [Pajak’s]

injury.” Taylor v. Cabell Huntington Hosp., Inc., 538 S.E.2d 719,

725 (W. Va. 2000).

All conduct committed by Boucher and alleged by Pajak is

intentional. See C.C. v. Harrison Cnty. Bd. of Educ., 859 S.E.2d

762, 775 (W. Va. 2021) (finding “because all of the acts alleged

to have been committed by the Assistant Principal were comprised

of intentional conduct, the circuit court correctly ruled that the

Petitioners had not made the requisite predicate showing of the

Assistant Principal’s negligence to support a claim of negligent

supervision by the Board . . . .”). Because no negligence on the

part of Boucher is alleged, Pajak’s negligent supervision claim

fails. Defendants are entitled to summary judgment on this claim,

and the motions [ECF Nos. 692, 699] are GRANTED on the negligent

supervision claim.

3. There remains a genuine dispute of material fact on

Pajak’s negligent retention claim, and Defendants Under

Armour, Inc. and Under Armour Retail, Inc., are not

entitled to judgment as a matter of law.

Pajak alleges that Defendants Under Armour, Inc., and Under

Armour Retail, Inc., negligently retained Boucher “as an employee,

agent, and supervisor despite the Defendants’ knowledge that

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

Defendant Boucher has repeatedly, intentionally, maliciously and

grossly violated Plaintiff’s rights as protected under the [WVHRA]

and other applicable laws.” ECF No. 291, Am. Compl., ¶ 67.

Defendants move for summary judgment on this claim, stating that

Pajak has not produced evidence supporting her claim for negligent

retention, and Pajak responded in opposition. ECF No. 750 at 44.

“[T]o hold an employer liable for negligent retention, the

employer must have been able to foresee the possible risk of harm

or injury to co-workers or third parties that could result from

the conduct of an unfit employee.” Harrison Cnty. Bd. of Educ.,

859 S.E.2d at 777 (internal citation and quotation marks omitted).

Reasonable foreseeability by the employer is key in the analysis

to determine whether a claim for negligent retention survives. Id.

The Under Armour defendants’ risk of retaining Boucher was

sufficiently foreseeable for Pajak’s claim to survive summary

judgment challenge. On or about June 20, 2018, Pajak called James

Toner (HR) in shock that Boucher had provided negative performance

feedback because he had never mentioned it in the past. ECF No.

750-17, Ex. Q, Toner’s Dep. 107:2-17. Toner agreed “that wasn’t

the response that one would expect” if Boucher had been providing

the negative feedback to Pajak he had relayed to Toner, and Pajak

had indeed been receiving the negative feedback. Id. Toner

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DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

requested Pajak’s performance review in July 2018, and found it to

be a positive performance review with constructive feedback

regarding strategy. Id. 133:6-134:2. In September 2018, Pajak

began voicing concern to Toner, again, about how Boucher was

conducting the PIP, specifically about the subjective measures

contained in the PIP and the shortened length of the PIP Boucher

planned for her. Id. 91:2-92:8. These facts alone provide the Under

Armour defendants with foreseeability as to Boucher’s risk of

retention as early as June 2018.

Viewing the facts in the light most favorable to Pajak, the

Court DENIES summary judgment on this ground, finding there exists

a genuine dispute of material fact and Defendants are not entitled

to judgment as a matter of law. Summary judgment [ECF Nos. 692,

699] is DENIED on the negligent retention claim.

E. Intentional Spoliation of Evidence.

The Court, having granted Defendants Under Armour, Inc. and

Under Armour Retail, Inc.’s, Motion to Bifurcate Spoliation Claims

[ECF No. 772],4 DENIES WITHOUT PREJUDICE Defendants’ Motions for

Summary Judgment [ECF Nos. 692, 699] on this claim.

4 The Court granted this motion at the hearing convened on March

16, 2023. An Order memorializing the Court’s reasons is

forthcoming.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

To prevail in an action for the intentional spoliation of

evidence, a plaintiff must prove seven elements:

(1) a pending or potential civil action; (2)

knowledge of the spoliator of the pending or

potential civil action; (3) willful

destruction of evidence; (4) the spoliated

evidence was vital to a party’s ability to

prevail in the pending or potential civil

action; (5) the intent of the spoliator to

defeat a party’s ability to prevail in the

pending or potential civil action; (6) the

party’s inability to prevail in the civil

action; and (7) damages.

Syl. Pt. 11, Hannah v. Heeter, 584 S.E.2d 560, 564 (W. Va. 2003).

In order to succeed, Pajak’s “inability to prevail in the civil

action” must first be determined. The verdicts or judgments on her

underlying claims may prove dispositive on that element.

Therefore, at this stage, the motion is premature and the Court

DENIES WITHOUT PREJUDICE Defendants’ Motions for Summary Judgment

[ECF Nos. 692, 699] on this claim.

V. CONCLUSION

For the reasons consistent in this Memorandum Opinion and

Order, the Court GRANTS in part and DENIES in part Defendants’

Motions for Summary Judgment. [ECF Nos. 692, 699].

It is so ORDERED.

The Clerk is directed to transmit copies of this Memorandum

Opinion and Order to counsel of record. The Clerk is further

Pajak v. Under Armour 1:19cv160

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

directed to enter a separate order of judgment consistent with

this Memorandum Opinion and Order.

DATED: March 30, 2023

THOMAS S. KLEEH, CHIEF JUDGE

NORTHERN DISTRICT OF WEST VIRGINIA

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