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Case: 09-10183 Document: 00511475175 Page: 1 - page 16 / 19





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Case: 09-10183 Document: 00511475175 Page: 16 Date Filed: 05/12/2011

No. 09-10183

were a pretext for discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (quotation marks and citation omitted).

The district court assumed without deciding that a prima facie case was established, and that assumption is not a point of contention on appeal. Yellow Transportation’s explanation for terminating Hernandez – that he violated the workplace policy – is also not at issue. The dispute concerns the final step in the analysis.

Hernandez argues that the following evidence establishes pretext: (a) similarly-situated employees were treated more favorably; (b) harassment by coworkers; and (c) the failure of a supervisor to respond to Hernandez’s complaint against Green. We analyze each of these allegations to determine whether Hernandez has shown an issue of material fact that Yellow Transportation’s nondiscriminatory explanation for firing Hernandez is false.

a. Similarly-situated employees treated more favorably Hernandez provides examples of employees who violated the workplace policy but were not fired, including Caucasian employees who threatened black employees, a Caucasian employee who threatened another Caucasian employee, and employees who fought in the workplace and across the street.

Hernandez has failed to make an effort to demonstrate that any of the employment actions “were taken under nearly identical circumstances[,]” including that Hernandez and the other employees shared the same job or responsibilities, reported to the same supervisor, had “essentially comparable violation histories[,]” and, most importantly, that the “conduct that drew the adverse employment decision [was] nearly identical . . . .” Lee v. Kan. City S. Ry. Co., 547 F.3d 253, 260 (5th Cir. 2009) (quotation marks and citations omitted).

b. Harassment by coworkers In addition to the incidents of harassment contained within his hostile work environment claim, Hernandez provides four additional examples of


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