Westendorf v. West Coast Contractors of Nevada, Inc.
2013 U.S. App. LEXIS 6526
| 9th Cir. | 2013Background
- Westendorf, a project manager assistant, began employment with West Coast Contractors in Feb. 2008 and was terminated July 29, 2008.
- She reported sexual harassment by co-worker Ellis and supervisor Joslyn; Ramirez, the company president, warned about misconduct but actions were inconsistent.
- Ellis repeatedly made offensive sexual remarks; Joslyn joined in some remarks but apologized for others; no physical harassment occurred.
- Westendorf reported incidents to Ramirez, who claimed to address them but harassment continued.
- On July 14, 2008, Ramirez held a formal interview with Westendorf, Joslyn, and Ellis; he warned them and considered drastic action possibly including termination.
- On July 29, 2008, Westendorf was escorted from the building; Ramirez stated she should leave due to a failure to get along with her supervisor; she alleges retaliatory termination for protected activity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Hostile work environment due to harassment | Westendorf claims repeated sexual remarks created a hostile environment. | Court should find the conduct not severe or pervasive enough. | Harassment claim fails; environment not sufficiently hostile. |
| Retaliation for protected conduct | Termination was caused by reporting harassment on July 14 and July 29. | Termination based on defiance of supervisory directions; pretext not shown. | Reverse on retaliation claim; remand for further proceedings. |
| Pretext for discharge | Evidence could show retaliation was a but-for cause. | No proven pretext; employer honestly believed its reason. | Summary judgment reversed in part; remand for proceedings not inconsistent with holding. |
Key Cases Cited
- E.E.O.C. v. Prospect Airport Servs., Inc., 621 F.3d 991 (9th Cir. 2010) (liability for coworker harassment depends on employer knowledge and remedial action)
- Faragher v. City of Boca Raton, 524 U.S. 775 (U.S. 1998) (hostile environment standards, severity, and pervasiveness)
- Nilsson v. City of Mesa, 503 F.3d 947 (9th Cir. 2007) (evidence viewed favorably to plaintiff in summary judgment)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (summary judgment standard; court must view evidence in light favorable to nonmovant)
- Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002) (but-for causation in retaliation cases; honest belief standard for justification)