Colgan Air, Inc. v. WV HRC & Rao Zahid Khan

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This is an appeal by Colgan Air from a decision by the West Virginia Human Rights Commission ("HRC"). The HRC concluded that the company had violated the Human Rights Act by creating or not preventing a hostile work environment for one of its employees, Mr. Khan, who was a co-pilot in a Huntington-based flight crew, and was of Pakistani descent and Muslim religion. Mr. Khan was terminated in October 2001 after failing a required proficiency check. He filed a complaint with the HRC, and the case was heard by an Administrative Law Judge ("ALJ"). The ALJ ultimately concluded that the company had not discriminated against Mr. Khan, because company management was not aware of the initial harassment, and once management became aware, it took action. Further, the ALJ concluded that the company did not subject Mr. Khan to disparate treatment by not offering him retraining after the failed proficiency check; in view of the financial position of the regional airlines following the events of September 11, 2001, the company acted fairly and consistently. On review, the HRC reversed the conclusions of the ALJ, after determining that Mr. Khan did report the harassment to an employee with supervisory responsibilities, and therefore liability could be imputed to the company. Further, the HRC concluded that the company provided other employees with retraining, so it should have treated Mr. Khan the same way. On appeal, Colgan Air argues that the HRC should not have re-examined the conclusions of the ALJ, and further argues that the HRC wrongly concluded that liability should be imputed to the company. Khan responds that the HRC properly viewed the evidence as a whole, and that the company does not dispute that a hostile work environment existed. (Colgan Air is represented by Brian J. Moore, Jackson Kelly, PLLC, Charleston WV and Mark A. Dombroff and Shaleeza Altaf, McLean VA, admitted pro hac vice. The West Virginia Human Rights Commission is represented by Richard M. Riffe, Assistant Attorney General, Civil Rights Division, Office of the Attorney General, Charleston WV. Rao Zahid Khan is represented by Dwight J. Staples, Henderson, Hendersnn & Staples, L.C., Huntington WV. An amicus curiae brief was filed by The Regional Airline Association, represented by Scott Caudill, Caudill Law, Charleston WV.)