Westendorf v. West Coast Contractors of Nevada, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JENNIFER WESTENDORF, No. 11-16004 Plaintiff-Appellant, D.C. No. v. 3:09-cv-00272-

LRH-RAM

WEST COAST CONTRACTORS OF

NEVADA , INC.,

Defendant-Appellee. OPINION

Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding

Argued and Submitted September 11, 2012—Las Vegas, Nevada

Filed April 1, 2013

Before: Morris S. Arnold*, Johnnie B. Rawlinson, and Jay S. Bybee, Circuit Judges.

Opinion by Judge Arnold; Partial Concurrence and Partial Dissent by Judge Rawlinson

* The Honorable Morris S. Arnold, Senior Circuit Judge for the Eighth Circuit, sitting by designation. WESTENDORF V . WEST COAST CONTRACTORS

SUMMARY**

Employment Discrimination

The panel affirmed in part and reversed in part the district court’s summary judgment in favor of the defendant in a Title VII action claiming sexual harassment and retaliatory discharge.

Affirming in part, the panel held that the plaintiff did not make out a prima facie case of sexual harassment because the evidence did not support a…

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, 503 F.3d 947, 951 (9th Cir.2007). In February, 2008, Ms. Westendorf began working for West Coast as a project manager assistant under the supervision of Project Manager Dan Jos-lyn. She worked in that position until Mario Ramirez, company president, terminated her on July 29 of the same year.

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…

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…