Pajak v. Under Armour, Inc., 1:19-cv-00160

Cynthia Pajak was hired by Under Armour as Regional Director; Brian Boucher was her direct supervisor.
Pajak sued Under Armour and Boucher alleging violations of the West Virginia Human Rights Act (WVHRA), including a hostile work environment, a pretextual PIP, and termination in retaliation.
The court previously concluded Under Armour did not meet the WVHRA numerosity requirement (fewer than 12 employees in West Virginia) and thus is not an "employer" under the statute.
Boucher moved to certify to the West Virginia Supreme Court of Appeals whether a WVHRA claim may be maintained against an individual "person" (supervisor) when the employer is not a covered "employer."
The court denied Boucher’s certification request, finding controlling West Virginia precedent already resolves the issue.
The court held that the WVHRA’s definition of "person" and Supreme Court of Appeals decisions permit supervisory liability for an individual regardless of whether the employer itself is covered under the WVHRA.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a WVHRA cause of action may be maintained against an individual supervisor when the employer is not a covered "employer" under the WVHRA	Pajak: Boucher is liable for his own discriminatory/retaliatory acts independent of employer coverage	Boucher: If Under Armour is not a covered employer, he cannot be held liable because his only connection to Pajak is via employment	Denied certification; court held existing WV precedent shows individuals are "persons" under §5-11-3(a) and may be liable for their own conduct regardless of employer coverage

Holstein v. Norandex, Inc., 461 S.E.2d 473 (W. Va. 1995) (an employee may be sued under the WVHRA for aiding/abetting employer discrimination)
Hanlon v. Chambers, 464 S.E.2d 741 (W. Va. 1995) (supervisory employee may state claim based on hostile work environment created by subordinates)
Michael v. Appalachian Heating, LLC, 701 S.E.2d 116 (W. Va. 2010) (insurance company held within meaning of "person" under WVHRA)
Conrad v. ARA Szabo, 480 S.E.2d 801 (W. Va. 1996) (WVHRA construed liberally to effectuate its purposes)
Williamson v. Greene, 490 S.E.2d 23 (W. Va. 1997) (certified question declined when not briefed by parties)
Banker v. Banker, 474 S.E.2d 265 (W. Va. 1996) (courts must not read into statutes requirements they do not contain)
W. Va. Radiologic Tech. Bd. v. Darby, 427 S.E.2d 486 (W. Va. 1993) (statutes clear and unambiguous should be applied, not construed)
Volvo Constr. Equip. N. Am. v. CLM Equip. Co., Inc., 386 F.3d 581 (4th Cir. 2004) (federal courts sitting in diversity apply state substantive law)
Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) (establishing Erie doctrine for applying state substantive law in federal courts)