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Case: 09-10183 Document: 00511475175 Page: 1 - page 14 / 19





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Case: 09-10183 Document: 00511475175 Page: 14 Date Filed: 05/12/2011

No. 09-10183

ordinary employees, nor was the alleged harassment committed in furtherance of Yellow Transportation’s business. See id.

Ketterer urges us to apply caselaw from other circuits expanding Title VII’s retaliation provision to protect against broader forms of coworker retaliation. We decline this invitation.

2. Increased workload Ketterer alleges that after he began picketing, he received more work, heavier assignments, and dirtier jobs. The district court found these allegations unsupported by evidence and Ketterer had not established a causal link. Any effort to do so now is too late. See Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.

  • 1994)


  • 3.

    Reinstatement without back-pay

Ketterer contends that he was discharged after a physical altercation with a coworker and reinstated without back-pay, while his coworker received back- pay. The district court found that Ketterer had not establish a prima facie case, but even if he had, he failed to offer evidence of “but for” causation to rebut Yellow Transportation’s legitimate, nondiscriminatory reason for its actions; that is, Ketterer’s violation of workplace policy.

Because we can affirm a district court “on any basis established by the record,” we need only look to the summary judgment evidence to confirm that, in fact, Ketterer did not demonstrate that “but for” his participation in protected activities, he would not have been reinstated without back-pay. See Long, 88 F.3d at 305 n.4.

We note that to defeat a motion for summary judgment, a plaintiff must demonstrate “a conflict in substantial evidence on [the] ultimate issue” of “but for” causation. Id. at 308 (quotation marks and citations omitted). “Evidence is ‘substantial’ if it is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions.”


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