Plaintiff 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 appealed.?? ?The Ninth Circuit affirmed the judgment on the harassment claim, and reversed and remanded the retaliation claim.

The Plaintiff was employed for approximately four months as an assistant project manager. ?She alleged? ?that? ?two? ?managers? ?repeatedly?? made sexual comments and remarks, including describing her work as ?girly work,? frequent lewd remarks about breast size, comments about women?s private bodily functions, saying ?f ?????????????????????????????????????????????????????????????????????????????? ?you? to Plaintiff on several occasions, etc. Plaintiff insisted that the manager stop that language? on ?each ?occasion, ?and ?he? refused ?to stop.? She also complained after each comment to the company President.

The ?President ?of ?the ?company? promised ?to discuss the issue with both managers.? ?The behavior continued.? ?After three months of continuous complaints, the President questioned the relevant managers and Plaintiff with a court reporter taking a transcript. ?During the interview the offending supervisor was recalcitrant stating that he was ?sick of this, totally sick of it.?

Thereafter the retaliation began.?? Plaintiff was criticized for trivial issues which previously were satisfactory.?? ?Her supervisor was rude and abusive.?? ?Finally, ?after ?she? was ?reprimanded using obscene language, she complained again to the company President, who told her that she just couldn?t get along with the manager, and that she was terminated from employment. ?The employer denied that it fired her.

The? Ninth ?Circuit ?ruled ?that ?the? work environment was not sufficiently severe or pervasive to sustain the claim. ?The Court noted that Plaintiff was only required to work with the offending?? managers? ?once? ?a? ?week? ?for? ?three months. ??The harassment was not physical and Westendorf did not say that her work suffered because of it.??? ?Plaintiff failed to show that the abusive behavior altered the terms of employment.

The? Court ?reversed ?on ?the? issue? of? retaliation. ?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 Court applied a ?but for? standard of causation and ?not ??motivating? factor.????? ?Plaintiff ??had ?to show ?that ?her? protected ?conduct ?was ?a? but-for cause ? but not necessarily the only cause ? of her termination.?? ?The Ninth Circuit found that Plaintiff has satisfied this standard, and remanded for additional proceedings.

Judge Rawlinson concurred in part and dissented in part.? ?She concurred in the dismissal of the harassment claim and would have affirmed the dismissal of the retaliation claim as well.

Westendorf? ?v. West Coast Contractors, 712 F.3d 417 (9th? Cir. 4/1/2013) (Arnold (8th Cir.) Bybee, Rawlinson).