WEST VIRGINIA RECORD

CHARLESTON – Ford Motor Credit managers didn't discriminate against a supervisor in Huntington when they suspended and demoted him for abuse and harassment, the West Virginia Supreme Court of Appeals decided.

In a May 5 opinion, all five Justices reversed state human rights commissioners who ruled that Ford Motor Credit owed Nabil Akl $624,654 in lost earnings.

The Justices found that Ford Motor Credit handled complaints about Akl properly and would have handled his complaints probably if he hadn't quit as soon as he made them.

"Mr. Akl's resignation and failure to cooperate in a discrimination investigation that he initiated precludes imputing the alleged conduct to Ford Motor," they wrote. "Ford Motor presented evidence that it had a policy in place that prohibited the use of foul and abusive language in the workplace.

"Under this policy, an employee could be terminated for using foul and abusive language in the workplace," they wrote.

Akl, a U.S. citizen, was born in Lebanon in 1967. He came to the U.S. at age nine.

Ford Motor Credit hired him in 1998 as a customer service representative in Atlanta. He gained several promotions and relocated to Nashville and Kansas City.

The company promoted him to supervisor in 2005, and sent him to Huntington. He and supervisor Carmine Spada shared responsibility for 12 workers.

Soon, a routine job satisfaction survey from headquarters set off a wave of anonymous protests about Akl's vulgarity and his attitude toward women.

Ford Motor Credit human resource employees DeAnne Griffore and Emma Loy hurried to Huntington and heard from nine workers that Akl used offensive language.

Some said he made homosexual jokes. Some said he imitated the mentally challenged.

Branch operations manager David MacDonald said that on three occasions he advised Akl that he shouldn't use profanity.

MacDonald said he placed a "swear jar" on Akl's desk so he could put a coin into it whenever he used profanity.

Griffore and Loy told Akl they would suspend him pending a decision.

Loy recommended termination to her supervisors, but they chose to reprimand and demote Akl without cutting his pay or benefits.

Branch manager Dave Nicosia delivered the news to Akl along with a letter alleging abusive, profane, vulgar and lewd language.

The letter said Akl's actions violated company policy and his behaviors were especially unacceptable in a supervisor.

Akl called Loy and said the disciplinary process was unfair. He said he was a victim of derogatory ethnic comments at the office.

Loy said someone would contact him about his allegations. She said he should contact the company's peer review office about the discipline.

Two other human resource employees called Akl the next day for an interview about his allegations, but he said he wanted to talk about his discipline.

They asked for specific details of ethnic comments, and he said he would provide details if it would change his discipline.

They said it wouldn't, and he said he would resign. He did, the next day.

He filed a discrimination complaint with the West Virginia Human Rights Commission, alleging disparate treatment and hostile work environment.

He also claimed constructive discharge, meaning they forced him to quit.

At hearings before administrative law judge Robert Wilson, Akl testified that he and others used profanity at work.

He said employees and clients regularly subjected him to ethnic comments.

His only witness from the office, Kirk Staggs, confirmed his testimony.

Six witnesses from the office said they hadn't heard ethnic comments.

One said she sought counseling because of the intimidating atmosphere Akl created.

Wilson found that Akl had proven his claims. On top of lost wages he awarded $31,250 in costs and legal fees and $5,000 in incidental damages, for a total of $660,904.

The commission affirmed the decision last July, and Ford Motor Credit appealed.

The Justices rejected the disparate treatment claim, finding Ford Motor Credit showed a legitimate reason to demote Akl.

"The evidence is clear in showing that, during the investigation at the Huntington office, only one supervisor was accused of using profanity and abusive language routinely," they wrote. "That supervisor was Mr. Akl."

They rejected his hostile environment claim, finding he took part with others in what he called teasing and bantering.

He didn't complain about ethnic comments until the company demoted him, they wrote.

They rejected his constructive discharge claim, finding that an employee must give an employer an opportunity to remedy problems before quitting.

"Mr. Akl refused to cooperate with Ford Motor in conducting an investigation of his allegations and chose, instead, to resign," they wrote.

Robert Fisher of Ripley represented Ford Motor Credit, along with Charlie Harris and Julia Kitsmiller of Kansas City, Mo.

Andrew Katz of Charleston represented Akl.