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One of the worst arguments that our employment lawyers hear from employer-side attorneys is as follows: “Because there is not enough evidence to support a sexually hostile work environment, all the claims go away, even the retaliation claims.” Or, something like: “Since the employee lost his Worker’s Compensation claim, it doesn’t matter that the employer fired him for filing it.” Wrong. Wrong. Wrong. Wrong. Wrong.

Retaliation claims are not dependant on the success of the underlying complaint. For a retaliation claim to succeed, the employee need only show that he or she engaged protected activity and a causal connection between that activity and the employee’s termination. Focusing on the engaging in protected activity element, the employee need only show that he or she had a good faith complaint about unlawful conduct or claim (i.e. the harassment, discrimination or Worker’s Compensation claim) and not that the conduct actually constituted actionable discrimination or Worker’s Compensation claim harassment.

A good example of this distinction is found in Westendorf v. West Coast Contractors of Nevada, Inc. In this case, the plaintiff, Jennifer Westendorf, worked as a project manager assistant at West Coast Contractors for about five months. When Westendorf started working, her supervisor, Dan Joslyn, referred to her duties as “girly work.” Additionally, while Joslyn was present, a co-worker made comments on about four occasions to Westendorf regarding the breasts size of another co-worker (whom he called “Double D”), whether women “got off” while using of tampons, and multiple orgasms. These four comments were spread over several months. Westendorf’s co-worker also suggested to Westendorf that she clean a construction trailer while wearing a French maid’s costume and said “f*** you” to her several times. When interviewed by the owner as a result of her complaints, Westendorf again complained about Ellis’s sexual remarks and objected toJoslyn’s failure to do anything to stop them. Westendorf also stated that she was worried about Joslyn’s reaction to her complaints.

Her concerns appeared to be well founded because although Joslyn previously had praised Westendorf’s work, immediately following the complaint, Joslyn began criticizing it and doing what she referred to as “nit picking.” Joslyn also belittled Westendorf in front of subcontractors and started cursing at her for the first time.

When Westendorf went back to the owner about the retaliation, the owner replied “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.” (alterations in orginal).

The trial court found that the limited comments, although inappropriate, did not rise to the level of being sexual harassment, because the conduct was not so severe or pervasive so as to alter the conditions of her employment and create an abusive working environment. Based on this determination, the trial court dismissed all Westendorf’s employment claims against West Coast Contractors. On appeal, the Ninth Circuit agreed that the sexual harassment claim did not survive:

“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.”

Nonetheless, the Ninth Circuit Court of Appeals reversed the trial court on the retaliation claim:

“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 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.”

These two paragraphs highlight the critical distinction between an underlying claim and retaliation claims.

If you even think that your employment rights have been violated or that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. Spitz, The Employee’s Law Firm is dedicated to protecting employees’ rights and solving employment disputes.


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