Westendorf v. West Coast Contractors: Court Affirms In Part and Reverses In Part Summary Judgment For Employer In Title VII Action

In Westendorf v. West Coast Contractors of Nevada, Inc., ___ F.3d ___ (9th Cir. 4/1/13), Jennifer Westendorf sued her former employer, West Coast Contractors, under Title VII for sexual harassment and retaliatory discharge. Westendorf alleged that her supervisor and a co-worker made "offensive sexual comments" to her, including calling her work “girly work,” commenting on another woman's breasts, asking if she found the woman's breasts “intimidating,” asking whether women “got off” when they used a particular kind of tampon, telling her that “women were lucky because [they] got to have multiple orgasms,” and  telling her to clean the workplace while wearing a French maid’s costume. When Westendorf complained to the company's president, Mario Ramirez, her supervisor began to criticize her work and use profanity against her. Westendorf continued to complain to Martinez, who terminated her approximately four months after she first raised the issue. Slip op. at 4-7. The district court granted West Coast's motion for summary judgment, and Westendorf appealed.  

The Court of Appeals affirmed summary judgment on the hostile work environment claim, holding that Westendorf did not make out a prima facie case of sexual harassment.  

Although we certainly do not condone Mr. Ellis’s crude and offensive remarks, we note that Ms. Westendorf went to his workplace only once a week for three months and often did not stay an entire day. Other than his references to the French maid’s costume, Mr. Ellis reportedly made offensive sexual remarks to Ms. Westendorf on only about four occasions. Mr. Joslyn joined Mr. Ellis in the “Double D” comments but otherwise made no sexual remarks to Ms. Westendorf, and he quickly apologized for his “girly work” remark, which she did not deem serious enough to complain about. The harassment was not physical and Ms. Westendorf did not say that her work suffered because of it. Because we conclude that the evidence, viewed favorably to her, did not show sexual harassment that was sufficiently severe or pervasive to alter the terms of Ms. Westendorf’s employment and subject her to an abusive environment, we affirm the judgment for West Coast on her sexual harassment claim. 

Slip op. at 9.  

The Court reversed as to the claim that West Coast fired Westendorf in retaliation for complaining about sexual harassment. Although the conduct did not rise to the level of sexual harassment, the Court held that it “could support a reasonable belief that she was subjected to actionable sexual harassment, and that she had such a belief.” Slip op. at 10. Accordingly, her complaints constituted protected activity. 

To make out a retaliation claim, Westendorf “had to show that her protected conduct was a but-for cause — but not necessarily the only cause — of her termination.” Slip op. at 10.  

We conclude that the record evidence was sufficient to raise a material question of fact as to whether Ms. Westendorf’s July 14 complaints — which we have already said could be “protected activity” — were a but-for cause of her termination. We therefore believe that the district court erred in granting the summary judgment motion on the ground that she failed to make out a prima facie case of retaliation. 

Slip op. at 11-12.  

The opinion is available here.