The offensive conduct of a co-worker and a supervisor, consisting of comments and incidents sexual in nature alleged by the plaintiff, was not severe or pervasive enough to create a hostile work environment under Title VII of the Civil Rights Act of 1964, a federal appeals court in San Francisco has ruled. Westendorf v. West Coast Contractors of Nevada, Inc., No. 11-16004 (9th Cir. Apr. 1, 2013). However, the Court held the employee raised sufficient factual questions as to whether her termination from employment was in retaliation for her complaints. Accordingly, the Court affirmed in part, and reversed in part, summary judgment in favor of the employer. The Ninth Circuit has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.


Jennifer Westendorf worked for West Coast Contractors of Nevada, Inc. as a project manager assistant; her supervisor was Dan Joslyn. A few months after starting her job, Westendorf began working one day a week at a construction site, where Patrick Ellis, a co-worker whom Joslyn also supervised, had his office. While Westendorf was working at the site, Ellis made various offensive sexual comments to her. On occasion, Joslyn heard those comments, but did nothing to stop them; from time to time, Joslyn joined in the banter or laughed at the comments.

Westendorf objected to the conduct and complained to the company’s president, Mario Ramirez. Ramirez investigated, interviewing Westendorf, Ellis and Joslyn. He then warned Joslyn and Ellis that if their conduct continued, they would face discipline, up to termination of employment. Ramirez also withheld a bonus from Ellis. 

Later, while Ramirez was on vacation, Joslyn was critical and short-tempered with Westendorf and cursed at her frequently. Upon Ramirez’s return, Westendorf complained that Joslyn asked her to do demeaning tasks and was disrespectful to her and she no longer wanted to work with Joslyn. Ramirez, according to Westendorf, told her that “he was tired of listening to all this and that obviously [she] had a problem getting along with [Joslyn] and that it would be best if [she] got [her] personal items and left.” Ramirez and two other employees then escorted Westendorf from the building. Ramirez, however, denied he fired Westendorf, saying she resigned. 

Westendorf sued her former employer for sexual harassment and retaliatory discharge. The district court granted the employer’s motion summary judgment, and Westendorf appealed.

Applicable Law

To establish a hostile work environment claim based on sexual harassment under Title VII, an employee must 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 EEOC v. Prospect Airport Servs., Inc., 621 F.3d 991, 997 (9th Cir. 2010). The employee must present evidence to support a finding that a “reasonable person” would find her work environment to be “hostile or abusive” and that she in fact did so. Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

To make out a prima facie retaliation case, an employee must show she engaged in protected activity and suffered a materially adverse action, and there was a causal relationship between the two. See Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). An employee engages in protected activity when she opposes an employment practice that either violates Title VII or that employee reasonably believes violates the law. See Freitag v. Ayers, 468 F.3d 528, 541 (9th Cir. 2006), cert. denied, 549 U.S. 1323 (2007).

Harassment Claim Rejected, Retaliation Claim Allowed

After examining all of the evidence, the appellate court concluded Westendorf did not establish a sexual harassment claim because the conduct was not 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.” While the Court did not condone the alleged behavior, it noted that Westendorf and Ellis were in the same workplace only once a week over three months, she often did not stay an entire day, and Ellis made sexually explicit comments on “only about four occasions.” The Court pointed out the alleged harassment was not physical and Westendorf’s work did not suffer because of it. Accordingly, the Court affirmed summary judgment in favor of West Coast on the sexual harassment claim.

Turning to the retaliation claim, the Court concluded Westendorf offered evidence sufficient to raise an issue for trial whether Ramirez terminated her employment because she had complained. Significantly, the Court pointed to Ramirez’s comment prior to her termination. The Court noted the “problem” of Westendorf and Joslyn not “getting along” had been “well-illustrated” when Ramirez investigated her complaints two weeks before her termination.

The Court also found Westendorf offered sufficient evidence of pretext, because Ramirez offered no legitimate reason for terminating Westendorf. To the contrary, Ramirez denied having done so, claiming that she resigned. Accordingly, the Court reversed summary judgment on Westendorf’s retaliation claim and returned the case to the district court.

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This case demonstrates how a defensible harassment lawsuit may be transformed into a more difficult retaliation lawsuit from actions allegedly taken against an employee after the employer had addressed and, where appropriate, remedied a harassment complaint. Here, the timing of the subsequent adverse employment actions and the company president’s steadfast denial he had fired the employee raised enough questions regarding the employer’s motives. 

Before taking any adverse action against an employee who previously has made harassment or discrimination complaints, employers should consider consulting with experienced employment counsel to assess and mitigate potential risks of liability for retaliation as well as any alleged discrimination.