In Westerndorf v. West Coast Contractors of Nevada, Inc. the Ninth Circuit recently reversed the lower Court's summary adjudication of a Plaintiff's claim for retaliation on the basis of sex despite the fact that it affirmed summary adjudication on the sexual harassment itself.
Plaintiff Jennifer Westendorf filed suit against her former employer West Coast Contractor for, among other things, sexual harassment and retaliation stemming from said harassment. She alleged that during the course of her employment, she endured a number of “offensive sexual comments”. She was told that her work was “girly”, asked whether large breasts on other women intimidated her, and told to clean the workplace in a French maid's outfit among other things. Despite this, the trial court granted summary judgment for West Coast and Ms. Westerndorf's appeal followed.
In a surprising verdict the Ninth Circuit Court of Appeals held that despite the affirmation of the lower court's ruling on Ms. Wetserndorf's claim for sexual harassment, her retaliation claim “could support a reasonable belief that she was subjected to actionable sexual harassment, and that she had such a belief.” By way of this opinion, it seems that a claim for retaliation based on sex will not necessary be precluded simply by virtue of insufficiencies in the sexual harassment claim on which said retaliation claim was predicated.