Westendorf v. West Coast Contractors of Nevada, Inc.
(9th Cir. April 1. 2013), Case No. 11-16004
The Ninth Circuit affirmed summary judgment for the employer on a former employee’s “hostile work environment” claim. The appellate court held that a male coworker’s “crude and offensive” remarks were not severe or pervasive enough to alter employment conditions, because the plaintiff interacted with the coworker only once a week and cited only five allegedly abusive incidents. The plaintiff, Jennifer Westendorf, alleged that soon after she started her employment with the employer, her direct supervisor, Dan Joslyn, referred to her duties as “girly work.” He immediately apologized, but the matter came to the attention of West Coast president Mario Ramirez.The employer assigned Ms. Westendorf to work one day a week at a construction site where both Mr. Joslyn and another employee, Patrick Ellis, had offices. On four or five of these occasions, Mr. Ellis allegedly made sexually-charged comments. Mr. Joslyn laughed along with Mr. Ellis, but allegedly made similar comments on only one such occasion. Ms. Westendorf allegedly complained each time, but Mr. Ellis allegedly persisted and Mr. Joslyn allegedly did not intervene. Mr. Ramirez responded to Ms. Westendorf’s complaints by conducting separate, recorded interviews with Ms. Westendorf, Mr. Ellis, and Mr. Joslyn, and instructing the latter to remedy the situation. Soon after, while Mr. Ramirez was on vacation, Mr. Joslyn began to criticize Ms. Westendorf’s performance, denigrate her in the presence of others, and address her in abusive, but non-sexual, terms. He also began requiring her to perform menial functions. Ms. Westendorf subsequently told a subcontractor that West Coast employees could not attend the subcontractor’s social event because of the wedding of Mr. Joslyn’s daughter. Mr. Joslyn reprimanded Ms. Westendorf, again using profane but non-sexual language. When Ms. Westendorf again complained to Mr. Ramirez, he faulted her for her comment to the subcontractor and for complaining about legitimate work-related assignments from Mr. Joslyn. Ms. Westendorf objected to these statements, and was escorted from the building.
The Ninth Circuit held that because Ms. Westendorf (i) only worked with Mr. Ellis one day a week for a period of three months, and (ii) could allege no more than four or five incidents involving offensive comments of a sexual nature, sexual harassment had not “[b]ecome a permanent fixture of the employment relationship.” Whatever sexual harassment occurred “[w]as [not] sufficiently severe or pervasive to alter the terms of Ms. Westendorf’s employment and subject her to an abusive environmen[t.]” Thus, Ms. Westendorf could not establish a prima facie hostile work environment claim under Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993), and summary judgment was therefore appropriate.
Posted in Labor and Employment Law
Full Opinion: http://cdn.ca9.uscourts.gov/datastore/opinions/2013/04/01/11-16004.pdf