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Case: 09-10183 Document: 00511475175 Page: 1 - page 11 / 19





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Case: 09-10183 Document: 00511475175 Page: 11

Date Filed: 05/12/2011

No. 09-10183

B. Ketterer’s Hostile Work Environment Claim

Ketterer appeals the district court’s grant of summary judgment on his hostile work environment claim. Ketterer, who is Caucasian, argues that he is a member of a protected class due to his association with African-Americans and Hispanics. He claims harassment based upon that association was sufficiently severe or pervasive as to affect his employment.

The district court found that Ketterer did not establish a prima facie case of a hostile work environment because he did not belong to a protected group, and did “not allege[] harassment based on his race that was sufficiently pervasive to affect his employment.” Arrieta, 2008 WL 5220569 at *29. Specifically, Ketterer failed to claim “an association with a protected group sufficient to bring him under the coverage of Title VII’s substantive anti- discrimination provision[.]” Id.

This court has not ruled on the extent of association necessary between a member of one race and a member of another race against which the employer discriminates in order for the member of the former race to have an actionable hostile work environment claim.1 We have, however, examined this question in the context of other provisions of Title VII. For example, we have held that “Title VII prohibits discrimination in employment premised on an interracial relationship.” Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 589

1 After this case was argued, the Supreme Court held that a person whose employment was otherwise unaffected could bring a Title VII retaliation claim for the firing of his coworker and fiancee. Thompson v. N. Am. Stainless, LP, 131 S. Ct. 863, 870 (2011). The retaliation allegedly was for the plaintiff’s protected conduct, but the penalty was directly suffered by the fiancee. Id. at 867. This holding applied “zone of interests” principles to the issue of who was a “person aggrieved” under Title VII. Id. at 870. “Title VII’s antiretaliation provision prohibits any employer action that ‘well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Id. at 868 (quoting Burlington N. & S.F.R. Co. v. White, 545 U.S. 53, 68 (2006)). Had there been employer retaliation for Ketterer’s protected conduct, but it was some other employee who suffered the adverse employment action, Thompson would have more relevance to this case.


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