Yes. She can sue the company for firing her. The judges thought the sexual comments were gross, but probably didn't happen often enough to count as an illegal 'hostile work environment.' However, Westendorf had every reason to think what was happening was illegal, so her complaining about it was a legally protected act. Firing her right after she complained looks a lot like the company was punishing her for speaking up, which is against the law.

No. The company should not be sued for firing her. This judge agreed that the harassment wasn't illegal. But she argued the company had a good reason for firing Westendorf that had nothing to do with her complaints: she was being disrespectful to her boss. Since Westendorf couldn't prove this was just a fake excuse, the judge believed the company did nothing wrong in firing her.

Yes, the lower court made a mistake about the firing complaint, but not about the sexual harassment complaint. I agree that there wasn't enough proof that the sexual comments were so bad that they made Westendorf's job unbearable. But I think there's enough evidence to suggest that Westendorf might have been fired for complaining about what she thought was sexual harassment. Even if the harassment wasn't bad enough to break the law, Westendorf could have reasonably believed it was, so her complaints were protected by law. There's enough evidence to suggest that her complaints on July 14 might have been why she was fired. Also, the company didn't give a good enough reason for firing Westendorf, because they said they didn't fire her at all.

I agree with Judge Arnold about the sexual harassment part, but I disagree about the firing part. I think Westendorf didn't show enough proof that the company's reason for firing her (or not letting her come back to work) was fake. The company president said he wouldn't let Westendorf come back because she said she didn't have to follow her bosses' instructions. Westendorf didn't prove this reason was made up. Also, I think we shouldn't look at the complaints before July 14 because the company already dealt with those.

Yes. An employee's termination following complaints about conduct she reasonably believed was sexual harassment creates a triable issue of fact for a retaliation claim. While the underlying sexual harassment claim fails because the conduct, though crude and offensive, was not sufficiently severe or pervasive to alter the conditions of employment, Westendorf's complaints constituted protected activity. A reasonable jury could find that her formal complaints on July 14 were a but-for cause of her termination 15 days later, especially given Ramirez's comment that he was 'tired of listening to all this' and the close temporal proximity. Because the employer denied firing Westendorf, it failed to offer a legitimate, non-retaliatory reason for the termination, thus precluding summary judgment.

No. While the employee established a prima facie case of retaliation, she failed to show that the employer's legitimate, non-retaliatory reason for the adverse employment action was pretextual. This opinion concurs that the hostile work environment claim fails. However, it dissents on the retaliation claim because the employer, West Coast, did offer a legitimate reason for the termination (or refusal to reinstate): Westendorf's stated defiance of supervisory authority and insubordination. Westendorf presented no evidence that this reason was a pretext for retaliation. Therefore, summary judgment in favor of the employer was appropriate.

Yes, the district court erred in granting summary judgment on the retaliation claim, but not on the sexual harassment claim. I affirm the judgment on the harassment claim because the evidence does not support a finding that the offensive sexual conduct was so severe or pervasive that it altered the conditions of Ms. Westendorf's employment and created a work environment that a reasonable person would consider hostile or abusive. However, I reverse and remand on the retaliation claim because the evidence could support a reasonable belief that Ms. Westendorf was subjected to actionable sexual harassment, making her complaints protected activity. The evidence and inferences, viewed favorably to Ms. Westendorf, are sufficient to support a retaliation claim. Ms. Westendorf made out a prima facie case of retaliation, and there are material questions of fact as to whether her July 14 complaints were a but-for cause of her termination. Additionally, West Coast did not offer sufficient evidence of a legitimate, non-retaliatory reason for terminating Ms. Westendorf, as they denied firing her at all.

I concur with the majority's decision on the sexual harassment claim but dissent on the retaliation claim. I agree that Westendorf failed to raise a material issue of fact regarding her hostile work environment claim. However, I disagree that she raised a material issue of fact on her retaliation claim. While Westendorf may have established a prima facie case of retaliation, she failed to offer any evidence that the employer's proffered reason for the adverse action was pretextual. Ramirez testified that he would not reinstate Westendorf due to her insistence that she did not have to follow supervisory directions. This unrefuted explanation supports summary judgment in favor of the employer. The majority's attempt to include pre-July 14 events in the retaliation analysis is misguided, as those complaints were addressed by Ramirez and are no longer part of the McDonnell Douglas paradigm.

Westendorf v. West Coast Contractors of Nevada, Inc.

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