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Westendorf v. West Coast Contractors, No. 11-16001 (9th Cir. Apr. 1, 2013)

An employer that strenuously denied that it fired an employee who complained about sex harassment finds itself short-handed on appeal. The Ninth Circuit - in a 2-1 decision - reverses summary judgment in this Title VII harassment and retaliation case, holding that an employer that fails to offer a reason or explanation for a termination decision creates an issue of fact for the jury to decide.

Westendorf v. West Coast Contractors, No. 11-16001 (9th Cir. Apr. 1, 2013):  The employee Ms. Westendorf complained that, over a three-month period, male employees (Messrs. Ellis and Joslyn) had made demeaning remarks to her - for instance, telling her that she should wear a "French maid's costume (or maid's uniform)" and clean the trailer - and also various crude references to women's breast sizes, the use of tampons, and orgasms. She made complaints after these incidents, in particular on July 14 and 29, 2008, to the company president, Mr. Ramirez.

Immediately after the July 29 complaint, Ms. Westendorf was confronted by Mr. Ramirez. She complained that her male supervisor Mr. Joslyn had contrived a conflict in the office just to embarrass her: "she said that he [Mr. Joslyn] had a binder in front of him and, when she handed him a piece of paper, he told her to put it in the binder herself, a task he had not asked her to do before." She refused to put the sheet in the binder. Then, according to the plaintiff, the president said that she should have done what Mr. Joslyn told her to do. He also said "that he was tired of listening to all this and that obviously [she] had a problem getting along with [Mr. Joslyn] and that it would be best if [she] got [her] personal items and left."

The company president testified, for his part, that Ms. Westendorf quit, but that he would not rehire her because of her failure to carry out Mr. Joslyn's order. Mr. Ramirez testified that he "would not have somebody who is going to work for me" where that person is not willing to follow instructions from her supervisors.

The district court dismissed Ms. Westendorf Title VII claims in their entirety.

The Ninth Circuit panel majority affirms summary judgment on the sex harassment claim, but reverses the retaliation claim. On the hostile work environment claim, the panel holds unanimously that the behavior was too intermittent and mild to create Title VII liability. But the panel majority holds that there is a triable issue of fact about the Title VII retaliation claim, that she was fired for opposing alleged sex harassment.

The court holds that the record was at least ambiguous about whether the protected activity (complaining about harassment) commenced only as of July 29, 2008 or was based on her earlier complaints.

The panel majority also holds that because the only explanation that the defendant offered on the retaliation claim is that the employee quit, and was not fired, the record presented a genuine issue of material fact about whether her separation from employment was motivated by retaliation:

 "First, West Coast did not offer any evidence of its reason for firing Ms. Westendorf because it denied doing so. Mr. Ramirez wrote to her specifically denying that he had fired her, and he testified to that effect at his deposition. Though he also testified that he would not rehire Ms. Westendorf because, in response to his hypothetical question on July 29, she said that she would not follow a direction from him that she did not agree with, he did not say that he terminated her for that reason. We believe, moreover, that even if West Coast had proffered this as a reason for discharging Ms. Westendorf, her prima facie case and related inferences might well support a finding of pretext, especially since she had no record of insubordination until she complained about sexual harassment. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 n.10 (1981)."

Dissenting, Judge Rawlinson would hold that the defendant did offer an explanation for the employee's discharge - insubordination:

"If the evidence is to be interpreted in favor of Westendorf's 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 'would not have somebody who is going to work for me' where that person is not willing to follow instructions from her supervisors. He expressly stated that was the reason he would not let Westendorf return to his company. Whether characterized as a termination or a failure to reinstate employment after a resignation, the record is crystal clear and unrefuted that Ramirez proffered Westendorf's stated defiance of supervisory authority as the basis for the adverse employment action."

Please visit the professional bio of Paul W. Mollica at the Outten & Golden LLP website.

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