656 S.E.2d 33
Mr. Khan was stationed at the Tri-State Airport in Huntington, West Virginia,
and contends that he endured harassment from August 2000 to July 2001. He contends that
he complained to Captain Mayers (See footnote 1) about the harassment approximately twenty-five times.
Although Captain Mayers maintains that he told Mr. Khan to contact the Chief Pilot, Mr.
Khan states that Captain Mayers never informed him that he should refer the complaints to
the Chief Pilot in Manassas and always led Mr. Khan to believe that the issue would be
resolved. Furthermore, the testimony of Ms. Pam Jarrell revealed that she personally
informed Mary Finnigan, Vice President of Personnel and Marketing in the Manassas office,
of Mr. Khan's harassment as early as March or April 2001.
In Hanlon v. Chambers, 195 W.Va. 99, 464 S.E.2d 741 (1995), this Court held as follows:
Where an agent or supervisor of an employer has caused,
contributed to, or acquiesced in the harassment, then such
conduct is attributed to the employer, and it can be fairly said
that the employer is strictly liable for the damages that result.
When the source of the harassment is a person's co-workers and
does not include management personnel, the employer's liability
is determined by its knowledge of the offending conduct, the
effectiveness of its remedial procedures, and the adequacy of its
195 W.Va. at 108, 464 S.E.2d at 750. Application of that standard to this situation requires a dual analysis: first, whether the offending individuals are agents or supervisors, and second, whether Mr. Khan notified his immediate supervisor and when management personnel learned of the harassment.
The record supports a conclusion that the harassing individuals can accurately be characterized as individuals who exercised supervisory control (See footnote 2) over Mr. Khan, despite Colgan Air's contention that they are merely coworkers. That is, as Hanlon instructs, a distinction of significant import in the determination of employer liability. If the offending individuals are indeed supervisors, Hanlon makes it clear that there is liability imputed to the employer.
One federal court has observed that [d]etermining whether an employee is a supervisor as opposed to a mere co-worker has been a tricky business for courts. Schele v. Porter Mem. Hosp., 198 F.Supp.2d 979, 989 (N.D. Ind. 2001). As explained by the New Jersey court in Entrot v. BASF Corp., 819 A.2d 447 (N.J. Super. 2003), [t]he federal courts appear to have split into two camps, one focusing on power to make key personnel decisions and the other on power to direct on-the-job activities. 819 A.2d at 456. In Entrot, the court noted that supervisory status depends on the nature of the employer's delegation of authority to the harassing co-worker. If the co-worker had the authority to control the work environment, any harassing behavior by him or her will cause the employer to be liable. 819 A.2d at 454.
As the New Jersey court explained in Heitzman v. Monmouth County, 728
A.2d 297 (N.J. Super. 1999), [a]n employer is generally liable for a hostile work
environment created by a supervisor because the power an employer delegates to a
supervisor 'to control the day-to-day working environment' facilitates the harassing
conduct. 728 A.2d at 302, quoting Lehmann v. Toys 'R' Us, Inc., 626 A.2d 445, 462 (N.J.
In Dinkins v. Charoen Pokphand USA, Inc., 133 F.Supp.2d 1254 (M.D. Ala. 2001), the Alabama court rejected a proposed requirement that an individual must have the power to hire, fire, or discipline in order to be characterized as a supervisor. 133 F.Supp.2d at 1266. Rather, the Dinkins court found that an individual may be deemed a supervisor if he is empowered to recommend tangible employment actions if his recommendations are given substantial weight by the final decisionmaker or to direct another employee's day-to-day work activities in a manner that may increase the employee's workload or assign additional or undesirable tasks. Id.
This approach has been adopted by the Equal Employment Opportunity Commission in its enforcement guidelines, wherein an individual qualifies as an employee's supervisor if the individual has authority to undertake or recommend tangible employment decisions affecting the employee or if the individual has authority to direct the employee's
daily work activities. EEOC, Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, http://www.eeoc.gov/policy/docs/harassment.html (last modified June 21, 1999).
In Browne v. Signal Mountain Nursery, L.P., 286 F.Supp.2d 904 (E.D. Tenn. 2003), the United States District Court for the Eastern District of Tennessee addressed the definitional issue and reasoned as follows:
[A]n employee does not qualify as a supervisor for purposes
of Title VII employer vicarious liability unless he or she is
placed by the employer, formally or informally, in a position of
superior authority and possesses some significant degree of
control over the hiring, firing, demotion, promotion, transfer, or
discipline of subordinates. Supervisory status is not a formulaic
question of title, but a particularized inquiry into the nature and
extent of the authority bestowed upon an employee by an
employer. The authority entrusted in a supervisory employee
need not be plenary or absolute, but it must encompass, in some
significant way, the power to initiate, recommend, or effect
tangible employment actions affecting the economic livelihood
of the supervisor's subordinates.
286 F.Supp.2d at 918.
The United States District Court for the Eastern District of Texas, in Hayes v. Laroy Thomas, Inc., 2007 WL 128287 (E.D. Tex. 2007), analyzed the reasoning of cases addressing this issue and ultimately adopted the Browne approach, defining supervisor broadly enough to encompass not only individuals with the power to hire and fire but also
individuals with power to affect the economic livelihood of subordinates. Specifically, the Hayes court held:
The Court, having reviewed the relevant case law and arguments of the parties, is of the opinion the most appropriate definition of supervisor is the one provided in summary by the court in Browne. . . . This definition requires more than just daily supervision of daily work activities and work assignments. However, it acknowledges that the authority entrusted to the supervisory employee need not be absolute; it can encompass the power to initiate, recommend, or effect tangible employment actions.
2007 WL 128287 at *16. (See footnote 3)
In discussing the perils of the narrow definition of supervisor, a concurring opinion in Rhodes v. Illinois Dept. of Transp., 359 F.3d 498 (7th Cir. 2004), explained as follows:
Cases like this one suggest that we ought to re-examine
the criteria we have articulated for identifying supervisors. The
standard that this circuit has established has the allure of
drawing a bright line between those who have the power to
make formal employment decisions and those who do not. But
it excludes from the category of supervisor those employees
who, although lacking final authority to hire, fire, promote,
demote, or transfer the plaintiff, nonetheless enjoy substantial
authority over the plaintiff's day-to-day work life. To that
extent, it is a standard that arguably does not comport with the
realities of the workplace. And to the extent that employers with multiple worksites vest the managers of such sites with substantial authority and discretion to run them but reserve formal employment authority to a few individuals at central headquarters, our standard may have the practical, if unintended, effect of insulating employers from liability for harassment perpetrated by their managers.
359 F.3d at 510 (Rovner, Judge, concurring) (emphasis provided).
In the case sub judice, the majority of this Court resolved both components of this question in favor of Colgan Air, finding that the offending individuals were not acting in a supervisory role and that Mr. Khan did not report to the proper immediate supervisor, since Mr. Khan reported only to Captain Mayers rather than to management personnel in Manassas, Virginia. Captain Mayers was the Lead Pilot in Huntington, he was apprised of this harassment repeatedly, and he assured Mr. Khan that the matter would be dealt with. To hold that Mr. Khan failed to adequately report the harassment under these circumstances is a disingenuous exercise in semantics. Further, by failing to acknowledge that the offending personnel were acting in a supervisory role, this Court's conclusions have perpetuated, as Judge Rovner observed above, the practical, if unintended, effect of insulating employers from liability for harassment perpetrated by their managers. Rhodes, 359 F.3d at 510 (Rovner, Judge, concurring).