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Case: 09-10183 Document: 00511475175 Page: 1 - page 13 / 19





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Case: 09-10183 Document: 00511475175 Page: 13 Date Filed: 05/12/2011

No. 09-10183

to the plaintiff to prove that the protected conduct “was a ‘but for’ cause of the adverse employment decision.” Id. at 305 n.4 (citation omitted).

The district court determined that Ketterer engaged in protected activity when he picketed against Yellow Transportation’s treatment of minorities. This finding is not in dispute. As to the next two elements of a prima facie case, the district court found that Ketterer did not suffer adverse employment actions, and that he failed to offer evidence he would not have been retaliated against “but for” his engagement in protected activity. Ketterer’s appeal focuses on these two elements of the inquiry.

An adverse employment action is one that “a reasonable employee would have found . . . [to be] materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir. 2008) (quotation marks and citation omitted). In determining whether an adverse employment action occurred, we focus on the final decisionmaker. Gee v. Principi, 289 F.3d 342, 346 (5th Cir. 2002) (citation omitted). The actions of ordinary employees are not imputable to their employer unless they are conducted “in furtherance of the employer’s business.” Long, 88 F.3d at 306 (citation omitted). There must, however, be “a direct relationship between the allegedly discriminatory conduct and the employer’s business.” Id.

On appeal, Ketterer alleges to have suffered the following adverse employment actions: (1) harassment by coworkers; (2) increased workload; and

  • (3)

    reinstatement without back-pay. We examine each in turn.

  • 1.

    Harassment by coworkers

Ketterer advances various incidents of coworker harassment, including name-calling, physical intimidation, false accusations, vandalization of his belongings, verbal threats, and observing violence and illegal behavior. None of these alleged incidents, however, were perpetrated by anyone other than


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