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.
2 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 finding that the offensive sexual
conduct of a co-worker and a supervisor was so severe or
pervasive that it altered the conditions of the plaintiff’s
employment and created a work environment that a
reasonable person would consider hostile or abusive.
Reversing in part, the panel held that the district court
erred in granting summary judgment on the grounds that the
plaintiff failed to make out a prima facie case of retaliation
and offered no evidence that the defendant’s legitimate reason
for terminating her was pretextual. The panel held that the
evidence was sufficient to raise a material question of fact as
to whether the plaintiff’s complaints were a but-for cause of
her termination. In addition, the evidence supported a finding
that the plaintiff was fired because of her protected activity.
Concurring in part and dissenting in part, Judge
Rawlinson agreed that the plaintiff failed to raise a material
issue of fact in conjunction with her claim of hostile work
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
WESTENDORF V . WEST COAST CONTRACTORS 3
environment due to sexual harassment. She did not agree
with the majority’s conclusion that the plaintiff raised a
material issue of fact in conjunction with her claim of
retaliation.
COUNSEL
Mark Mausert, Mark Mausert Law Offices, Reno, Nevada,
for Plaintiff-Appellant.
Susan Heaney Hilden, Littler Mendelson PC, Reno, Nevada,
for Defendant-Appellee.
OPINION
ARNOLD, Circuit Judge:
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 Joslyn. She
4 WESTENDORF V . WEST COAST CONTRACTORS
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. Westendorf’s 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
WESTENDORF V . WEST COAST CONTRACTORS 5
Mr. Ellis stop. Mr. Joslyn participated with Mr. Ellis in
commenting on the breast size of the woman at the barbecue,
and he merely smiled or chuckled when he was present for
Mr. Ellis’s other offensive remarks. Ms. Westendorf reported
each incident to Mr. Ramirez, who would say that he’d talk
to Mr. Ellis and that the behavior had to stop. His offensive
behavior nevertheless continued. Beginning in May,
whenever Ms. Westendorf saw Mr. Ellis or she answered his
phone calls to the main office, he would tell her that she had
to clean the trailer while wearing a French maid’s costume (or
maid’s uniform) or would make a similar comment to her. In
early July, Ms. Westendorf told Mr. Ramirez that Mr. Ellis
had said “f___ you” to her several times during a
disagreement and when she asked Mr. Joslyn to intervene, he
just smiled.
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. Westendorf’s
complaints. During Ms. Westendorf’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.”
6 WESTENDORF V . WEST COAST CONTRACTORS
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
WESTENDORF V . WEST COAST CONTRACTORS 7
explain fully, Mr. Ramirez questioned her about the
subcontractor’s party invitation. Ms. Westendorf then began
to tell Mr. Ramirez about how Mr. Joslyn had been treating
her. For example, she said that he 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. He then smirked at Mr. Ellis, while reprimanding
Ms. Westendorf for not performing the task. Mr. Ramirez
said that she should do what Mr. Joslyn told her to do, and
Ms. Westendorf complained that Mr. Ramirez was not going
to do anything about the problem. Finally, Mr. Ramirez 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.”
Mr. Ramirez and two other employees escorted her from the
building. At her deposition, Ms. Westendorf testified that she
was fired. Mr. Ramirez admitted that she was escorted from
the building, but said that she had quit.
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., 621 F.3d 991,
997 (9th Cir. 2010). She had to 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, 787
(1998).
8 WESTENDORF V . WEST COAST CONTRACTORS
In assessing whether the evidence could support a finding
that Ms. Westendorf 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
plaintiff’s co-worker if it knew or should have known about
the misconduct and failed to take “prompt and effective
remedial action.” Prospect Airport Servs., 621 F.3d at 1001.
We consider Mr. Ellis’s offensive remarks in this context
because Ms. Westendorf testified that they began in May and
that she told Mr. Ramirez within three days of each incident,
but the record would support a finding that he took no action
until July 14. Because Mr. Joslyn supervised Ms. Westendorf
and West Coast did not establish an affirmative defense as a
matter of law, we also consider his conduct when determining
whether she made out a claim against the company. See
Montero v. AGCO Corp., 192 F.3d 856, 861 (9th Cir. 1999).
Having considered the evidence as a whole, we conclude
that Ms. Westendorf 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.,
621 F.3d at 999-1000. To determine whether a hostile work
environment claim is actionable, we consider all of the
circumstances, which “ ‘may include the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interfere[d]’ ” with the employee’s
WESTENDORF V . WEST COAST CONTRACTORS 9
work performance. Id. at 998-99 (quoting Harris v. Forklift
Sys., Inc., 510 U.S. 17, 23 (1993)).
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. Westendorf’s 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, 548 U.S. 53, 57 (2006); Bergene
v. Salt River Project Agric. Improvement & Power Dist.,
272 F.3d 1136, 1140–41 (9th Cir. 2001). An employee
engages in protected activity when she opposes an
employment practice that either violates Title VII or that the
10 WESTENDORF V . WEST COAST CONTRACTORS
employee reasonably believes violates that law. See Freitag
v. Ayers, 468 F.3d 528, 541 (9th Cir. 2006), cert. denied,
549 U.S. 1323 (2007); 42 U.S.C. § 2000e-3(a). Even though
we have held that the evidence did not support
Ms. Westendorf’s sexual harassment claim, we think that it
could support a reasonable belief that she was subjected to
actionable sexual harassment, and that she had such a belief.
In such circumstances, her complaints about that conduct
would be protected activity.
The district court determined, however, based on Ms.
Westendorf’s 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,
477 U.S. 242, 250–51 (1986), and that the evidence and
inferences from it, when viewed favorably to her, are
sufficient to support a retaliation claim.
To make out such a claim, Ms. Westendorf 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., 281 F.3d 1054, 1064–65 (9th Cir.
WESTENDORF V . WEST COAST CONTRACTORS 11
2002). The district court referred to Ms. Westendorf’s
deposition to support its conclusion that she alleged that she
was fired solely for her July 29 complaints. At one point, Ms.
Westendorf answered “yes,” when West Coast’s counsel
asked whether she was claiming that she was terminated
“because [she] complained on July 29th.” We think that this
affirmative response is both general and ambiguous and in
any case does not compel a conclusion that she claimed that
Mr. Ramirez fired her solely because of her complaints about
what happened during his absence. As one example, we think
that Ms. Westendorf’s answer may have meant merely that
her complaining on that date had triggered Mr. Ramirez’s
decision to fire her, not that he had no thought of all that had
gone before. Mr. Ramirez himself testified that she came to
his office saying that “things happened again” while he was
gone, an obvious reference to the behavior she had
complained about on July 14. And we believe that a
reasonable inference could be drawn that her July 29
complaints about Mr. Joslyn would have brought to Mr.
Ramirez’s mind her complaint about Mr. Joslyn only fifteen
days earlier at interviews that Mr. Ramirez himself had
arranged and conducted. He had thought her complaint
serious enough at the time to bring it to Mr. Joslyn’s attention
and even to warn him of possible termination. And we note
Mr. Ramirez’s stated reason for firing her: According to Ms.
Westendorf, he 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 problem of Ms. Westendorf and
Mr. Joslyn not “getting along” had been well-illustrated
during Mr. Ramirez’s interviews with them on July 14.
We conclude that the record evidence was sufficient to
raise a material question of fact as to whether Ms.
12 WESTENDORF V . WEST COAST CONTRACTORS
Westendorf’s 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.
Westendorf offered no evidence that its legitimate reason for
terminating her was pretextual. See Dawson v. Entek Int’l,
630 F.3d 928, 936 (9th Cir. 2011). We see no merit to this
conclusion. 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).
We conclude that the evidence supports a finding that Mr.
Ramirez fired Ms. Westendorf because of her protected
activity and would not otherwise have done so. We therefore
WESTENDORF V . WEST COAST CONTRACTORS 13
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.
AFFIRMED in part, REVERSED in part, and
REMANDED. The parties shall bear their own costs on
appeal.
RAWLINSON, Circuit Judge, 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 Westendorf 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 Westendorf’s complaints. The
first occurred on July 14, 2008. Ramirez hired a court
reporter to memorialize the meeting, then separately
questioned Westendorf, her supervisor and her co-worker,
who were allegedly creating a hostile work environment by
14 WESTENDORF V . WEST COAST CONTRACTORS
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
Westendorf’s 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
Westendorf’s 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 Westendorf’s 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, Westendorf 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.
WESTENDORF V . WEST COAST CONTRACTORS 15
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, 632 F.3d
526, 532 (9th Cir. 2011). We must determine whether the
evidence so viewed raised a material issue of fact, thereby
precluding summary judgment. See id.
In determining whether a material issue of fact has been
raised on a retaliation claim, we apply the familiar McDonell
Douglas standard.1 See Cohen v. Fred Meyer, Inc., 686 F.2d
793, 796 (9th Cir. 1982). Under that standard, the Plaintiff
must first establish a prima facie case of retaliation. See id.
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 Westendorf, 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, 281 F.3d 1054, 1064 (9th
Cir. 2002) (recognizing an internal complaint of harassment
as protected activity). According to Westendorf, she was
terminated immediately following her report. See id. at 1065
1
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
16 WESTENDORF V . WEST COAST CONTRACTORS
(noting that adverse action in close proximity to the protected
conduct may establish a prima facie case of retaliation).
However, I do quarrel with the majority’s attempt to include
the pre-July 14 events in the retaliation analysis.
It is undisputed that following the July 14 session,
Ramirez counseled Westendorf’s co-worker and her
supervisor. In addition, Ramirez withheld a bonus that was
intended for Westendorf’s 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.
Enteck Intern., 630 F.3d 928, 940 (9th Cir. 2011) (explaining
that the employer has no liability for asserted harassment that
has been remediated). Rather than dwelling on remediated
complaints, we proceed to the balance of the analysis for the
retaliation complaint: Once the plaintiff establishes a prima
facie case of retaliation, the burden of production shifts to the
defendant to articulate a “legitimate, non-retaliatory reason
for the adverse action. . . . [T]he plaintiff must then show that
the asserted reason was a pretext for retaliation. . . .” Cohen,
686 F.2d at 796 (citations omitted). In assessing whether the
employer’s reason for the action is pretextual, “it is not
important whether [the proffered justification is] objectively
false,” i.e., whether Westendorf was actually insubordinate.
Villiarimo, 281 F.3d at 1063 (internal quotation marks
omitted) (emphasis in the original). “Rather, courts only
require that an employer honestly believed its reason for its
actions, even if its reason is foolish, or trivial or even
baseless. . . .” Id. (citation and internal quotation marks
omitted). If the employee presents no evidence that the
employer did not believe its proffered justification, summary
judgment in favor of the employer is warranted. See id.
WESTENDORF V . WEST COAST CONTRACTORS 17
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 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.
The majority further attempts to bolster Westendorf’s
case by suggesting that “her prima facie case and related
inferences might well support a finding of pretext.” Majority
Opinion, p. 12. (emphasis added). The majority cites Texas
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 n.10
(1981) as support. However, the referenced opinion note
does not state that a prima facie case and related inferences
“might well support a finding of pretext.” Rather, the note
states that the evidence from the prima facie case “and
inferences properly drawn therefrom may be considered by
the trier of fact” in deciding whether the employer’s proffered
18 WESTENDORF V . WEST COAST CONTRACTORS
explanation is a pretext. The note goes on to explain:
“Indeed, there may be some cases where the plaintiff’s initial
evidence, combined with effective cross-examination of the
defendant, will suffice to discredit the defendant’s
explanation.” Id. (emphasis added).
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, 281 F.3d at 1063 (affirming the
district court’s entry of summary judgment in favor of the
employer because the employee “presented no evidence that
[the employer] did not honestly believe its proffered
reasons”).
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 Westendorf’s
retaliation claim.