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Case: 09-10183 Document: 00511475175 Page: 1 - page 12 / 19





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Case: 09-10183 Document: 00511475175 Page: 12 Date Filed: 05/12/2011

No. 09-10183

(5th Cir. 1998), vacated in part on other grounds in Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 182 F.3d 333 (5th Cir. 1999) (en banc). Recently, we specified that the relationship between the unprotected employee and protected employee had to be “personal.” Floyd v. Amite Cnty. Sch. Dist., 581 F.3d 244, 249-50 (5th Cir. 2009) (citation omitted). Additionally, the discrimination must be “predicated on animus against the employee because of his association with persons of another race” as opposed to animus against members of the other race with whom the employee associates. Id. at 250.

Ketterer has not established that he had a “personal” relationship with members of a protected class. The only evidence offered before the district court on this claim is that Ketterer “associated with” minority employees. Because Ketterer did not adequately present this argument before the district court, any effort to do so now is too late. Keelan v. Majesco Software, Inc., 407 F.3d 332, 339 (5th Cir. 2005).

The district court properly dismissed Ketterer’s claim because he failed to establish a prima facie case of a hostile work environment. C. Ketterer’s Retaliation Claim

Ketterer argues the district court improperly held that he had not established a prima facie case of retaliation. According to Ketterer, he suffered various forms of retaliation for engaging in protected activity.

A plaintiff establishes a prima facie case of retaliation by showing (i) he engaged in a protected activity, (ii) an adverse employment action occurred, and (iii) there was a causal link between the protected activity and the adverse employment action. Taylor v. United Parcel Serv., Inc., 554 F.3d 510, 523 (5th Cir. 2008). If the plaintiff successfully presents a prima facie case, the burden shifts to the employer to provide a “legitimate, non-retaliatory reason for the adverse employment action.” Long v. Eastfield Coll., 88 F.3d 300, 304-05 (5th Cir. 1996) (citation omitted). Upon answering this inquiry, the burden returns


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