# Pajak v. Under Armour, Inc.

> District Court, N.D. West Virginia · March 30, 2023

URL: https://www.frixlaw.com/law-library/cases/10726501

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** March 30, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10726501

## How later opinions describe it (automated extraction)

- describing plaintiff’s burden to show circumstances give rise to inference of unlawful motivation as de minimis
- holding that the plaintiff’s former manager was a “person” who aided and abetted their employer’s unlawful act of discrimination

## Opinion text

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
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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
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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 . . . .”
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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
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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
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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.
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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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DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

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
DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

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
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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
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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,
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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
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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
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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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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
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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
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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
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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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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]
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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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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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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
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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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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

41

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10726501. Public record. Not legal advice.