Lead Opinion
Opinion by Judge ARNOLD; Partial Concurrence and Partial Dissent by Judge RAWLINSON.
OPINION
Jennifer Westendorf brought a Title VII action against her former employer, West Coast Contractors, claiming sexual harassment and retaliatory discharge. The district court granted summary judgment to West Coast, and Ms. Westendorf appeals. We affirm the judgment on the harassment claim, and reverse and remand the retaliation claim for further proceedings.
I.
We view the evidence and inferences from it favorably to Ms. Westendorf. See Nilsson v. City of Mesa,
During the first month of her employment, Mr. Joslyn once referred to Ms. Westendorfs duties as “girly work” and quickly apologized. She didn’t complain, but Mr. Ramirez heard about the remark and told her that he would speak to Mr. Joslyn about it; he also said that Mr. Joslyn had had previous problems with employees and that she should tell him if Mr. Joslyn did anything inappropriate. Mr. Joslyn called Ms. Westendorf six weeks later saying that Mr. Ramirez had talked to him about the “girly work” remark, and asked Ms. Westendorf “what the hell” she had said to Mr. Ramirez. When she told Mr. Joslyn that she hadn’t reported the incident, he hung up after saying that he’d “been through this shit before” and that “it’s just not happening” again.
In May, Ms. Westendorf began working once a week in a trailer at a construction site, where she assisted with subcontractors’ meetings and performed other tasks. Patrick Ellis, whom Mr. Joslyn also supervised, had his office at the trailer, and he began making offensive sexual comments to Ms. Westendorf. On one occasion, Mr. Ellis announced that a large-breasted woman, whom he called “Double D,” would be at a West Coast barbecue. When the woman arrived at the event, Mr. Joslyn and Mr. Ellis remarked on her breast size and asked Ms. Westendorf whether the size of the woman’s breasts intimidated her. In June, Mr. Ellis made some comments to Ms. Westendorf about tampons and asked whether women “got off’ when they used a particular kind. Around the same time, Mr. Ellis told her that “women were lucky because [they] got to have multiple orgasms.” During each of these incidents, Ms. Westendorf demanded that Mr. Ellis stop. Mr. Joslyn participated with Mr. Ellis in commenting on the breast size
On July 14, Mr. Ramirez arranged to have a court reporter make a record while he questioned Ms. Westendorf, Mr. Joslyn, and Mr. Ellis separately about Ms. Wes-tendorf s complaints. During Ms. Westen-dorf s interview, she complained about Mr. Ellis’s sexual remarks and objected to Mr. Joslyn’s failure to do anything to stop them. She also said that she was worried about Mr. Joslyn’s reaction to her complaints, and she explained that after she last talked to Mr. Ramirez about him, Mr. Joslyn had phoned her to say that “he didn’t need this shit anymore.” When he interviewed Mr. Joslyn, Mr. Ramirez said that Ms. Westendorf had complained about his failure to do anything about Mr. Ellis’s offensive sexual comments. And he warned Mr. Joslyn that the next time he failed to do anything about an offensive comment to Ms. Westendorf and “she start[ed] bringing up this thing,” Mr. Ramirez would have to take “drastic” action, including possibly terminating Mr. Joslyn. Mr. Ramirez told Mr. Joslyn that he was “an incredible, valuable employee.” In response, Mr. Joslyn said that he was “sick of this, totally sick of it.” He complained that “one word” could get him in trouble, and that he was now being told that he’d be fired if Mr. Ellis “was to say another derogatory word if I didn’t say nothin’.” Mr. Ramirez advised him to talk only about work to Ms. Westendorf.
Mr. Ramirez left for vacation about four days later, and Mr. Joslyn began treating Ms. Westendorf differently. He previously had praised her work but began criticizing it and doing what she referred to as “nit picking.” He also belittled her in front of subcontractors and started cursing at her for the first time; once when she brought him something that he’d requested, he asked, ‘What’s the matter, don’t you have a f_ing voice?”
Mr. Ramirez was back in the office on July 29. That morning, Mr. Joslyn criticized Ms. Westendorf for having told a subcontractor that the West Coast employees would not be able to come to the subcontractor’s social event because they would all be at Mr. Joslyn’s daughter’s wedding. Mr. Joslyn told Ms. Westendorf that he was “offended” at her using his daughter’s wedding as an excuse, and he said “f... you” to her three times while reprimanding her. Ms. Westendorf said, “I’m tired of this crap” and left the room, though she was supposed to attend a meeting that was about to start. Mr. Ramirez’s assistant told him that Ms. Westendorf was upset and had said that she didn’t want to work with Mr. Joslyn or Mr. Ellis; Mr. Ramirez called Mr. Joslyn and heard his rendition of the morning’s events.
Ms. Westendorf then arrived at Mr. Ramirez’s office, telling him that “things happened again” while he was gone and bringing a list of the incidents with her. Before she could explain fully, Mr. Ramirez questioned her about the subcontractor’s party invitation. Ms. Westendorf then began to tell Mr. Ramirez about how Mr. Joslyn
II.
To establish a hostile work environment claim based on sexual harassment, Ms. Westendorf had to show that she “was subjected to verbal or physical conduct of a sexual nature, ... that was unwelcome; and ... that was sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.” See E.E.O.C. v. Prospect Airport Servs., Inc.,
In assessing whether the evidence could support a finding that Ms. Westen-dorf was subjected to a hostile or abusive work environment, we consider the conduct of both Mr. Ellis, her co-worker, and Mr. Joslyn, her immediate supervisor. An employer is liable for a hostile environment created by a plaintiffs co-worker if it knew or should have known about the misconduct and failed to take “prompt and effective remedial action.” Prospect Airport Servs.,
Having considered the evidence as a whole, we conclude that Ms. Westen-dorf did not make out a prima facie case of sexual harassment because the evidence will not support a finding that the offensive sexual conduct was so severe or pervasive that it altered the conditions of her employment and created a work environment that a reasonable person would consider hostile or abusive. “We weigh both severity and pervasiveness to evaluate whether a reasonable victim would think that sexual harassment had become a permanent feature of the employment relationship.” Prospect Airport Servs.,
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. Westendorfs employment and subject her to an abusive environment, we affirm the judgment for West Coast on her sexual harassment claim.
III.
Ms. Westendorf also claimed that she was fired in retaliation for complaining about sexual harassment. To make out a prima facie retaliation case, she had to show that she engaged in protected activity, that she suffered a materially adverse action, and that there was a causal relationship between the two. See Burlington Northern & Santa Fe Ry. Co. v. White,
The district court determined, however, based on Ms. Westendorfs deposition testimony, that she was claiming that Mr. Ramirez fired her only in retaliation for the complaints she had on July 29. The court also concluded that she then complained about Mr. Joslyn’s work-related comments during Mr. Ramirez’s absence, conduct that did not violate Title VII. Therefore, the court reasoned, her complaints at the relevant time were not protected conduct, and she did not make out a retaliation claim.
But we believe that the court did not comply with its obligation at summary judgment to view the evidence and all inferences from the evidence favorably to Ms. Westendorf, when it so strictly circumscribed her retaliation claim. We think that “reasonable minds could differ as to the import” of her deposition testimony, see Anderson v. Liberty Lobby,
To make out such a claim, Ms. Westen-dorf had to show that her protected conduct was a but-for cause — but not necessarily the only cause — of her termination. Villiarimo v. Aloha Island Air, Inc.,
We conclude that the record evidence was sufficient to raise a material question of fact as to whether Ms. Westendorfs 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.
The district court also held, in the alternative, that West Coast was entitled to summary judgment because Ms. Westen-dorf offered no evidence that its legitimate reason for terminating her was pretextual. See Dawson v. Entek Int’l,
We conclude that the evidence supports a finding that Mr. Ramirez fired Ms. Wes-tendorf because of her protected activity and would not otherwise have done so. We therefore reverse the entry of judgment for West Coast on the retaliation claim and remand to the district court for further proceedings not inconsistent with this opinion.
Concurrence Opinion
concurring in part and dissenting in part:
I agree with the majority’s conclusion that Plaintiff Jennifer Westendorf failed to raise a material issue of fact in conjunction with her claim of hostile work environment due to sexual harassment. I do not agree with the majority’s conclusion that Wes-tendorf raised a material issue of fact in conjunction with her claim of retaliation.
Background
Westendorf contends that she was terminated by Mario Ramirez, the president of her employer, West Coast Contractors of Nevada, Inc. According to Westendorf, Ramirez terminated her in retaliation for her continued complaints of sexual harassment.
This case involved two discrete sessions involving Ramirez’s attempts to resolve Westendorfs complaints. The first occurred on July 14, 2008. Ramirez hired a court reporter to memorialize the meeting, then separately questioned Westen-dorf, her supervisor and her co-worker, who were allegedly creating a hostile work environment by engaging in sexually harassing conduct. After hearing from the involved parties, and even though the complained of conduct did not rise to the level of sexual harassment, Ramirez took corrective action. He warned both Wes-tendorfs supervisor and co-worker that they faced discipline, up to and including termination. Ramirez also withheld a bonus that he had previously planned to give Westendorfs co-worker.
The second session occurred after Ramirez returned from vacation approximately two weeks later. This session was precipitated by a conflict between Westendorf and her supervisor regarding Westendorfs unilateral decision to inform a subcontractor that none of the company’s employees would attend the subcontractor’s social event because they would all be attending the wedding of her supervisor’s daughter. Ramirez explained in his deposition that Westendorf acted inappropriately by depriving company employees of the opportunity to decide individually whether to attend the subcontractor event to maintain good business relations.
When her supervisor reprimanded her verbally for her inappropriate action, Wes-tendorf responded, “I’m tired of this crap” and left, even though she was supposed to attend a meeting that was about to commence. Westendorf then appeared at Ramirez’s office to inform him about incidents that had occurred while Ramirez was on vacation. Ramirez inquired about the most immediate conflict regarding the subcontractor event. Rather than responding directly, Westendorf began to explain by way of example that her supervisor had a binder in front of him and, when she gave him a piece of paper, he told her to put the paper in the binder rather than putting the paper inside the binder himself. Ramirez informed Westendorf that she should comply if her supervisor instructed her to perform a job-related task. Ultimately, Westendorf left the premises. Ramirez took the position that Westendorf resigned, while Westendorf maintained that she was terminated.
Legal Standards
In reviewing the summary judgment ruling, we view the evidence in the light most favorable to Westendorf, the non-moving party. See Las Vegas Sands, LLC v. Nehme,
In determining whether a material issue of fact has been raised on a retaliation claim, we apply the familiar McDonnell Douglas standard.
Discussion
I do not quarrel with the majority’s conclusion that Westendorf established a prima facie case of retaliation, because viewed in the light most favorable to Wes-tendorf, she engaged in protected conduct when she met with Ramirez on July 29 to report what she perceived as retaliatory' conduct. See Villiarimo v. Aloha Island Air,
It is undisputed that following the July 14 session, Ramirez counseled Westen-dorfs co-worker and her supervisor. In addition, Ramirez withheld a bonus that was intended for Westendorfs co-worker. Because the pre-July 14 complaints were addressed by Ramirez, they are no longer part of the McDonnell Douglas paradigm. See Dawson v. Entek Intern.,
I completely agree with the district court’s alternative holding that Westendorf offered no evidence of pretext. The majority attempts to counter the district court’s holding by remarking that Ramirez offered no evidence of his reason for terminating Westendorf because Ramirez denied terminating her. However, the majority cannot have it both ways. If the evidence is to be interpreted in favor of Westendorfs assertion that she was terminated, that inference of termination remains throughout the analysis. In any event, Ramirez testified that even though he thought Westendorf had resigned, he declined her request for reinstatement due to her insistence that she did not have to follow the directions of her supervisors. Ramirez specifically testified that he
The majority further attempts to bolster Westendorfs case by suggesting that “her prima facie case and related inferences might well support a finding of pretext.” Majority Opinion, p. 424. (emphasis added). The majority cites Texas Dep’t of Cmty. Affairs v. Burdine,
It is understandable why the majority failed to include the entirety of the referenced note because the facts of this case diverge considerably from the scenario described in the note. The cross-examination of Ramirez simply reinforced his testimony that he declined to reinstate Westendorf because she persisted in her refusal to follow directions from her supervisors. The proffered explanation was never challenged in any way as pretextual. This lack of evidence of pretext supports entry of summary judgment in favor of the employer. See Villiarimo,
Conclusion
Even after viewing the evidence in the light most favorable to Westendorf, she failed to raise a material issue of fact that the reasons Ramirez proffered for the adverse employment action were pretextual. For that reason, I would affirm in its entirety the district court’s judgment in favor of the employer. I respectfully dissent from that portion of the majority opinion reversing the judgment on Wes-tendorfs retaliation claim.
Notes
. McDonnell Douglas Corp. v. Green,