Jennifer Westendorf v. West Coast Contractors of Nevada
The Honorable Morris S. Arnold, Senior Circuit Judge for the Eighth*Circuit, sitting by designation.FOR PUBLICATIONUNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUITJENNIFER WESTENDORF,Plaintiff-Appellant,v.WEST COAST CONTRACTORS OFNEVADA, INC.,Defendant-Appellee.No. 11-16004D.C. No.3:09-cv-00272-LRH-RAMOPINIONAppeal from the United States District Courtfor the District of NevadaLarry R. Hicks, District Judge, PresidingArgued and SubmittedSeptember 11, 2012—Las Vegas, NevadaFiled April 1, 2013Before: Morris S. Arnold , Johnnie B. Rawlinson,*and Jay S. Bybee, Circuit Judges.Opinion by Judge Arnold;Partial Concurrence and Partial Dissent byJudge Rawlinson
WESTENDORF V. WEST COAST CONTRACTORS2This summary constitutes no part of the opinion of the court. It has**been prepared by court staff for the convenience of the reader.SUMMARY**Employment DiscriminationThe panel affirmed in part and reversed in part the districtcourt’s summaryjudgment in favor of the defendant in a TitleVII action claiming sexual harassment and retaliatorydischarge.Affirming in part, the panel held that the plaintiff did notmake out a prima facie case of sexual harassment because theevidence did not support a finding that the offensive sexualconduct of a co-worker and a supervisor was so severe orpervasive that it altered the conditions of the plaintiff’semployment and created a work environment that areasonable person would consider hostile or abusive.Reversing in part, the panel held that the district courterred in granting summary judgment on the grounds that theplaintiff failed to make out a prima facie case of retaliationandofferednoevidencethatthedefendant’slegitimatereasonfor terminating her was pretextual. The panel held that theevidence was sufficient to raise a material question of fact asto whether the plaintiff’s complaints were a but-for cause ofher termination. In addition, the evidence supported a findingthat the plaintiff was fired because of her protected activity.Concurring in part and dissenting in part, JudgeRawlinson agreed that the plaintiff failed to raise a materialissue of fact in conjunction with her claim of hostile work
WESTENDORF V. WEST COAST CONTRACTORS 3environment due to sexual harassment. She did not agreewith the majority’s conclusion that the plaintiff raised amaterial issue of fact in conjunction with her claim ofretaliation.COUNSELMark Mausert, Mark Mausert Law Offices, Reno, Nevada,for Plaintiff-Appellant.Susan Heaney Hilden, Littler Mendelson PC, Reno, Nevada,for Defendant-Appellee.OPINIONARNOLD, Circuit Judge:Jennifer Westendorf brought aTitle VIIaction against herformer employer, West Coast Contractors, claiming sexualharassment and retaliatory discharge. The district courtgranted summary judgment to West Coast, and Ms.Westendorf appeals. We affirm the judgment on theharassment claim, and reverse and remand the retaliationclaim for further proceedings.I.We view the evidence and inferences from it favorably toMs. Westendorf. See Nilsson v. City of Mesa, 503 F.3d 947,951 (9th Cir. 2007). In February, 2008, Ms. Westendorfbegan working for West Coast as a project manager assistantunder the supervision of Project Manager Dan Joslyn. She
WESTENDORF V. WEST COAST CONTRACTORS4worked in that position until Mario Ramirez, companypresident, terminated her on July 29 of the same year.During the first month of her employment, Mr. Joslynonce referred to Ms. Westendorf’s duties as “girly work” andquickly apologized. She didn’t complain, but Mr. Ramirezheard about the remark and told her that he would speak toMr. Joslyn about it; he also said that Mr. Joslyn had hadprevious problems with employees and that she should tellhim if Mr. Joslyn did anything inappropriate. Mr. Joslyncalled Ms. Westendorf six weeks later saying thatMr. Ramirez had talked to him about the “girly work”remark, and asked Ms. Westendorf “what the hell” she hadsaid to Mr. Ramirez. When she told Mr. Joslyn that shehadn’t reported the incident, he hung up after saying that he’d“been through this shit before” and that “it’s just nothappening” again.In May, Ms. Westendorf began working once a week ina trailer at a construction site, where she assisted withsubcontractors’ meetings and performed other tasks. PatrickEllis, whom Mr. Joslyn also supervised, had his office at thetrailer, and he began making offensive sexual comments toMs. Westendorf. On one occasion, Mr. Ellis announced thata large-breasted woman, whom he called “Double D,” wouldbe at a West Coast barbecue. When the woman arrived at theevent, Mr. Joslyn and Mr. Ellis remarked on her breast sizeand asked Ms. Westendorf whether the size of the woman’sbreasts intimidated her. In June, Mr. Ellis made somecomments to Ms. Westendorf about tampons and askedwhether women “got off” when they used a particular kind.Around the same time, Mr. Ellis told her that “women werelucky because [they] got to have multiple orgasms.” Duringeach of these incidents, Ms. Westendorf demanded that
WESTENDORF V. WEST COAST CONTRACTORS 5Mr. Ellis stop. Mr. Joslyn participated with Mr. Ellis incommenting on the breast size of the woman at the barbecue,and he merely smiled or chuckled when he was present forMr. Ellis’s otheroffensiveremarks. Ms. Westendorf reportedeach incident to Mr. Ramirez, who would say that he’d talkto Mr. Ellis and that the behavior had to stop. His offensivebehavior nevertheless continued. Beginning in May,whenever Ms. Westendorf saw Mr. Ellis or she answered hisphone calls to the main office, he would tell her that she hadto clean the trailer while wearing a French maid’s costume (ormaid’s uniform) or would make a similar comment to her. Inearly July, Ms. Westendorf told Mr. Ramirez that Mr. Ellishad said “f___ you” to her several times during adisagreement and when she asked Mr. Joslyn to intervene, hejust smiled.On July 14, Mr. Ramirez arranged to have a court reportermake a record while he questioned Ms. Westendorf, Mr.Joslyn, and Mr. Ellis separately about Ms. Westendorf’scomplaints. During Ms. Westendorf’s interview, shecomplained about Mr. Ellis’s sexual remarks and objected toMr. Joslyn’s failure to do anything to stop them. She alsosaid that she was worried about Mr. Joslyn’s reaction to hercomplaints, and she explained that after she last talked toMr. Ramirez about him, Mr. Joslyn had phoned her to saythat “he didn’t need this shit anymore.” When he interviewedMr. Joslyn, Mr. Ramirez said that Ms. Westendorf hadcomplained about his failure to do anything about Mr. Ellis’soffensive sexual comments. And he warned Mr. Joslyn thatthe next time he failed to do anything about an offensivecomment to Ms. Westendorf and “she start[ed] bringing upthis thing,” Mr. Ramirez would have to take “drastic” action,including possibly terminating Mr. Joslyn. Mr. Ramirez toldMr. Joslyn that he was “an incredible, valuable employee.”
WESTENDORF V. WEST COAST CONTRACTORS6In response, Mr. Joslyn said that he was “sick of this, totallysick of it.” He complained that “one word” could get him introuble, and that he was now being told that he’d be fired ifMr. Ellis “was to say another derogatory word if I didn’t saynothin’.” Mr. Ramirez advised him to talk only about workto Ms. Westendorf.Mr. Ramirez left for vacation about four days later, andMr. Joslyn began treating Ms. Westendorf differently. Hepreviously had praised her work but began criticizing it anddoing what she referred to as “nit picking.” He also belittledher in front of subcontractors and started cursing at her for thefirst time; once when she brought him something that he’drequested, he asked, “What’s the matter, don’t you have af___ing voice?”Mr. Ramirez was back in the office on July 29. Thatmorning, Mr. Joslyn criticized Ms. Westendorf for havingtold a subcontractor that the West Coast employees would notbe able to come to the subcontractor’s social event becausethey would all be at Mr. Joslyn’s daughter’s wedding. Mr.Joslyn told Ms. Westendorf that he was “offended” at herusing 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 theroom, though she was supposed to attend a meeting that wasabout to start. Mr. Ramirez’s assistant told him that Ms.Westendorf was upset and had said that she didn’t want towork 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 goneand bringing a list of the incidents with her. Before she could
WESTENDORF V. WEST COAST CONTRACTORS 7explain fully, Mr. Ramirez questioned her about thesubcontractor’s party invitation. Ms. Westendorf then beganto tell Mr. Ramirez about how Mr. Joslyn had been treatingher. For example, she said that he had a binder in front ofhim and, when she handed him a piece of paper, he told herto put it in the binder herself, a task he had not asked her todo before. He then smirked at Mr. Ellis, while reprimandingMs. Westendorf for not performing the task. Mr. Ramirezsaid that she should do what Mr. Joslyn told her to do, andMs. Westendorf complained that Mr. Ramirez was not goingto 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 thatit would be best if [she] got [her] personal items and left.”Mr. Ramirez and two other employees escorted her from thebuilding. At her deposition, Ms. Westendorf testified that shewas fired. Mr. Ramirez admitted that she was escorted fromthe building, but said that she had quit.II.To establish a hostile work environment claim based onsexual harassment, Ms. Westendorf had to show that she“was subjected to verbal or physical conduct of a sexualnature, ... that was unwelcome; and ... that was sufficientlysevere 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 supporta finding that a “reasonable person” would find her workenvironment to be “hostile or abusive” and that she in fact didso. Faragher v. City of Boca Raton, 524 U.S. 775, 787(1998).
WESTENDORF V. WEST COAST CONTRACTORS8In assessing whether the evidence could support a findingthat Ms. Westendorf was subjected to a hostile or abusivework environment, we consider the conduct of both Mr. Ellis,her co-worker, and Mr. Joslyn, her immediate supervisor. Anemployer is liable for a hostile environment created by aplaintiff’s co-worker if it knew or should have known aboutthe misconduct and failed to take “prompt and effectiveremedial action.” Prospect Airport Servs., 621 F.3d at 1001.We consider Mr. Ellis’s offensive remarks in this contextbecause Ms. Westendorf testified that they began in May andthat she told Mr. Ramirez within three days of each incident,but the record would support a finding that he took no actionuntil July14. BecauseMr. Joslyn supervised Ms. Westendorfand West Coast did not establish an affirmative defense as amatter of law, we also consider his conduct when determiningwhether she made out a claim against the company. SeeMontero v. AGCO Corp., 192 F.3d 856, 861 (9th Cir. 1999).Having considered the evidence as a whole, we concludethat Ms. Westendorf did not make out a prima facie case ofsexual harassment because the evidence will not support afinding that the offensive sexual conduct was so severe orpervasive that it altered the conditions of her employment andcreated a work environment that a reasonable person wouldconsider hostile or abusive. “We weigh both severity andpervasiveness to evaluate whether a reasonable victim wouldthink that sexual harassment had become a permanent featureof the employment relationship.” Prospect Airport Servs.,621 F.3d at 999-1000. To determine whether a hostile workenvironment claim is actionable, we consider all of thecircumstances, which “ ‘may include the frequency of thediscriminatory conduct; its severity; whether it is physicallythreatening or humiliating, or a mere offensive utterance; andwhether it unreasonably interfere[d]’ ” with the employee’s
WESTENDORF V. WEST COAST CONTRACTORS 9work performance. Id. at 998-99 (quoting Harris v. ForkliftSys., Inc., 510 U.S. 17, 23 (1993)).Although we certainly do not condone Mr. Ellis’s crudeand offensive remarks, we note that Ms. Westendorf went tohis workplace only once a week for three months and oftendid not stay an entire day. Other than his references to theFrench maid’s costume, Mr. Ellis reportedly made offensivesexual remarks to Ms. Westendorf on only about fouroccasions. 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 complainabout. The harassment was not physical and Ms. Westendorfdid not say that her work suffered because of it. Because weconclude that the evidence, viewed favorably to her, did notshow sexual harassment that was sufficiently severe orpervasive to alter the terms of Ms. Westendorf’s employmentand subject her to an abusive environment, we affirm thejudgment for West Coast on her sexual harassment claim.III.Ms. Westendorf also claimed that she was fired inretaliation for complaining about sexual harassment. Tomake out a prima facie retaliation case, she had to show thatshe engaged in protected activity, that she suffered amaterially adverse action, and that there was a causalrelationship between the two. See Burlington Northern &Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); Bergenev. Salt River Project Agric. Improvement & Power Dist.,272 F.3d 1136, 1140–41 (9th Cir. 2001). An employeeengages in protected activity when she opposes anemployment practice that either violates Title VII or that the
WESTENDORF V. WEST COAST CONTRACTORS10employee reasonably believes violates that law. See Freitagv. Ayers, 468 F.3d 528, 541 (9th Cir. 2006), cert. denied,549 U.S. 1323 (2007); 42 U.S.C. § 2000e-3(a). Even thoughwe have held that the evidence did not supportMs. Westendorf’s sexual harassment claim, we think that itcould support a reasonable belief that she was subjected toactionable sexual harassment, and that she had such a belief.In such circumstances, her complaints about that conductwould be protected activity.The district court determined, however, based on Ms.Westendorf’s deposition testimony, that she was claimingthat Mr. Ramirez fired her only in retaliation for thecomplaints she had on July 29. The court also concluded thatshe then complained about Mr. Joslyn’s work-relatedcomments during Mr. Ramirez’s absence, conduct that didnot violate Title VII. Therefore, the court reasoned, hercomplaints 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 itsobligation at summary judgment to view the evidence and allinferences from the evidence favorably to Ms. Westendorf,when it so strictly circumscribed her retaliation claim. Wethink that “reasonable minds could differ as to the import” ofher deposition testimony, see Anderson v. Liberty Lobby,477 U.S. 242, 250–51 (1986), and that the evidence andinferences from it, when viewed favorably to her, aresufficient to support a retaliation claim.To make out such a claim, Ms. Westendorf had to showthat her protected conduct was a but-for cause — but notnecessarily the only cause — of her termination. Villiarimov. Aloha Island Air, Inc., 281 F.3d 1054, 1064–65 (9th Cir.
WESTENDORF V. WEST COAST CONTRACTORS 112002). The district court referred to Ms. Westendorf’sdeposition to support its conclusion that she alleged that shewas fired solely for her July 29 complaints. At one point, Ms.Westendorf answered “yes,” when West Coast’s counselasked whether she was claiming that she was terminated“because [she] complained on July 29th.” We think that thisaffirmative response is both general and ambiguous and inany case does not compel a conclusion that she claimed thatMr. Ramirez fired her solely because of her complaints aboutwhat happened duringhis absence. As one example, we thinkthat Ms. Westendorf’s answer may have meant merely thather complaining on that date had triggered Mr. Ramirez’sdecision to fire her, not that he had no thought of all that hadgone before. Mr. Ramirez himself testified that she came tohis office saying that “things happened again” while he wasgone, an obvious reference to the behavior she hadcomplained about on July 14. And we believe that areasonable inference could be drawn that her July 29complaints about Mr. Joslyn would have brought to Mr.Ramirez’s mind her complaint about Mr. Joslyn only fifteendays earlier at interviews that Mr. Ramirez himself hadarranged and conducted. He had thought her complaintserious enough at the time to bring it to Mr. Joslyn’s attentionand even to warn him of possible termination. And we noteMr. Ramirez’s stated reason for firing her: According to Ms.Westendorf, he said “that he was tired of listening to all thisand 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 andMr. Joslyn not “getting along” had been well-illustratedduring Mr. Ramirez’s interviews with them on July 14.We conclude that the record evidence was sufficient toraise a material question of fact as to whether Ms.
WESTENDORF V. WEST COAST CONTRACTORS12Westendorf’s July 14 complaints — which we have alreadysaid could be “protected activity” — were a but-for cause ofher termination. We therefore believe that the district courterred in granting the summary judgment motion on theground that she failed to make out a prima facie case ofretaliation.The district court also held, in the alternative, that WestCoast was entitled to summary judgment because Ms.Westendorf offered no evidence that its legitimate reason forterminating her was pretextual. See Dawson v. Entek Int’l,630 F.3d 928, 936 (9th Cir. 2011). We see no merit to thisconclusion. First, West Coast did not offer any evidence ofits reason for firing Ms. Westendorf because it denied doingso. Mr. Ramirez wrote to her specifically denying that he hadfired 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 questionon July 29, she said that she would not follow a directionfrom him that she did not agree with, he did not say that heterminated her for that reason. We believe, moreover, thateven if West Coast had proffered this as a reason fordischarging Ms. Westendorf, her prima facie case and relatedinferences might well support a finding of pretext, especiallysince she had no record of insubordination until shecomplained about sexual harassment. See Texas Dep’t ofCmty. 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 protectedactivity and would not otherwise have done so. We therefore
WESTENDORF V. WEST COAST CONTRACTORS 13reverse the entry of judgment for West Coast on theretaliation claim and remand to the district court for furtherproceedings not inconsistent with this opinion.AFFIRMED in part, REVERSED in part, andREMANDED. The parties shall bear their own costs onappeal.RAWLINSON, Circuit Judge, concurring in part anddissenting in part:I agree with the majority’s conclusion that PlaintiffJennifer Westendorf failed to raise a material issue of fact inconjunction with her claim of hostile work environment dueto sexual harassment. I do not agree with the majority’sconclusion that Westendorf raised a material issue of fact inconjunction with her claim of retaliation.BackgroundWestendorf contends that she was terminated by MarioRamirez, the president of her employer, West CoastContractors of Nevada, Inc. According to Westendorf,Ramirez terminated her in retaliation for her continuedcomplaints of sexual harassment.This case involved two discrete sessions involvingRamirez’s attempts to resolve Westendorf’s complaints. Thefirst occurred on July 14, 2008. Ramirez hired a courtreporter to memorialize the meeting, then separatelyquestioned Westendorf, her supervisor and her co-worker,who were allegedly creating a hostile work environment by
WESTENDORF V. WEST COAST CONTRACTORS14engaging in sexually harassing conduct. After hearing fromthe involved parties, and even though the complained ofconduct did not rise to the level of sexual harassment,Ramirez took corrective action. He warned bothWestendorf’s supervisor and co-worker that they faceddiscipline, up to and including termination. Ramirez alsowithheld a bonus that he had previously planned to giveWestendorf’s co-worker.The second session occurred after Ramirez returned fromvacation approximately two weeks later. This session wasprecipitated by a conflict between Westendorf and hersupervisor regarding Westendorf’s unilateral decision toinform a subcontractor that none of the company’s employeeswould attend the subcontractor’s social event because theywould all be attending the wedding of her supervisor’sdaughter. Ramirez explained in his deposition thatWestendorf acted inappropriately by depriving companyemployees of the opportunity to decide individually whetherto attend the subcontractor event to maintain good businessrelations.When her supervisor reprimanded her verbally for herinappropriateaction,Westendorf responded,“I’mtired of thiscrap” and left, even though she was supposed to attend ameeting that was about to commence. Westendorf thenappeared at Ramirez’s office to inform him about incidentsthat had occurred while Ramirez was on vacation. Ramirezinquired about the most immediate conflict regarding thesubcontractor event. Rather than responding directly,Westendorf began to explain by way of example that hersupervisor had a binder in front of him and, when she gavehim a piece of paper, he told her to put the paper in the binderrather than putting the paper inside the binder himself.
WESTENDORF V. WEST COAST CONTRACTORS 15McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).1Ramirez informed Westendorf that she should comply if hersupervisor instructed her to perform a job-related task.Ultimately, Westendorf left the premises. Ramirez took theposition that Westendorf resigned, while Westendorfmaintained that she was terminated.Legal StandardsIn reviewing the summary judgment ruling, we view theevidence in the light most favorable to Westendorf, the non-moving party. See Las Vegas Sands, LLC v. Nehme, 632 F.3d526, 532 (9th Cir. 2011). We must determine whether theevidence so viewed raised a material issue of fact, therebyprecluding summary judgment. See id.In determining whether a material issue of fact has beenraised on a retaliation claim, we apply the familiar McDonellDouglas standard. See Cohen v. Fred Meyer, Inc., 686 F.2d1793, 796 (9th Cir. 1982). Under that standard, the Plaintiffmust first establish a prima facie case of retaliation. See id.DiscussionI do not quarrel with the majority’s conclusion thatWestendorf established a prima facie case of retaliation,because viewed in the light most favorableto Westendorf, sheengaged in protected conduct when she met with Ramirez onJuly 29 to report what she perceived as retaliatory conduct.See Villiarimo v. Aloha Island Air, 281 F.3d 1054, 1064 (9thCir. 2002) (recognizing an internal complaint of harassmentas protected activity). According to Westendorf, she wasterminated immediately following her report. See id. at 1065
WESTENDORF V. WEST COAST CONTRACTORS16(noting that adverse action in close proximity to the protectedconduct may establish a prima facie case of retaliation).However, I do quarrel with the majority’s attempt to includethe pre-July 14 events in the retaliation analysis.It is undisputed that following the July 14 session,Ramirez counseled Westendorf’s co-worker and hersupervisor. In addition, Ramirez withheld a bonus that wasintended for Westendorf’s co-worker. Because the pre-July14 complaints were addressed by Ramirez, they are no longerpart of the McDonnell Douglas paradigm. See Dawson v.Enteck Intern., 630 F.3d 928, 940 (9th Cir. 2011) (explainingthat the employer has no liability for asserted harassment thathas been remediated). Rather than dwelling on remediatedcomplaints, we proceed to the balance of the analysis for theretaliation complaint: Once the plaintiff establishes a primafacie case of retaliation, the burden of production shifts to thedefendant to articulate a “legitimate, non-retaliatory reasonfor the adverse action. . . . [T]he plaintiff must then show thatthe asserted reason was a pretext for retaliation. . . .” Cohen,686 F.2d at 796 (citations omitted). In assessing whether theemployer’s reason for the action is pretextual, “it is notimportant whether [the proffered justification is] objectivelyfalse,” i.e., whether Westendorf was actually insubordinate.Villiarimo, 281 F.3d at 1063 (internal quotation marksomitted) (emphasis in the original). “Rather, courts onlyrequire that an employer honestly believed its reason for itsactions, even if its reason is foolish, or trivial or evenbaseless. . . .” Id. (citation and internal quotation marksomitted). If the employee presents no evidence that theemployer did not believe its proffered justification, summaryjudgment in favor of the employer is warranted. See id.
WESTENDORF V. WEST COAST CONTRACTORS 17I completely agree with the district court’s alternativeholding that Westendorf offered no evidence of pretext. Themajority attempts to counter the district court’s holding byremarking that Ramirez offered no evidence of his reason forterminating Westendorf because Ramirez denied terminatingher. However, the majority cannot have it both ways. If theevidence is to be interpreted in favor of Westendorf’sassertion that she was terminated, that inference oftermination remains throughout the analysis. In any event,RamireztestifiedthateventhoughhethoughtWestendorfhadresigned, he declined her request for reinstatement due to herinsistence that she did not have to follow the directions of hersupervisors. Ramirez specificallytestified that he “would nothave somebody who is going to work for me” where thatperson is not willing to follow instructions from hersupervisors. He expressly stated that was the reason hewould not let Westendorf return to his company. Whethercharacterized as a termination or a failure to reinstateemployment after a resignation, the record is crystal clear andunrefuted that Ramirez proffered Westendorf’s stateddefiance of supervisory authority as the basis for the adverseemployment action.The majority further attempts to bolster Westendorf’scase by suggesting that “her prima facie case and relatedinferences might well support a finding of pretext.” MajorityOpinion, p. 12. (emphasis added). The majority cites TexasDep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 n.10(1981) as support. However, the referenced opinion notedoes not state that a prima facie case and related inferences“might well support a finding of pretext.” Rather, the notestates that the evidence from the prima facie case “andinferences properly drawn therefrom may be considered bythe trier of fact” in deciding whether the employer’s proffered
WESTENDORF V. WEST COAST CONTRACTORS18explanation is a pretext. The note goes on to explain:“Indeed, there may be some cases where the plaintiff’s initialevidence, combined with effective cross-examination of thedefendant, will suffice to discredit the defendant’sexplanation.” Id. (emphasis added).It is understandable why the majority failed to include theentirety of the referenced note because the facts of this casediverge considerably from the scenario described in the note.The cross-examination of Ramirez simply reinforced histestimony that he declined to reinstate Westendorf becauseshe persisted in her refusal to follow directions from hersupervisors. The proffered explanation was never challengedin any way as pretextual. This lack of evidence of pretextsupports entry of summary judgment in favor of theemployer. See Villiarimo, 281 F.3d at 1063 (affirming thedistrict court’s entry of summary judgment in favor of theemployer because the employee “presented no evidence that[the employer] did not honestly believe its profferedreasons”).ConclusionEven after viewing the evidence in the light mostfavorable to Westendorf, she failed to raise a material issueof fact that the reasons Ramirez proffered for the adverseemployment action were pretextual. For that reason, I wouldaffirm in its entirety the district court’s judgment in favor ofthe employer. I respectfully dissent from that portion of themajority opinion reversing the judgment on Westendorf’sretaliation claim.