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Case: 09-10183 Document: 00511475175 Page: 1 - page 18 / 19





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Case: 09-10183 Document: 00511475175 Page: 18 Date Filed: 05/12/2011

No. 09-10183

of protected activities, including picketing against Yellow Transportation’s treatment of minorities, filing an EEOC complaint, joining a lawsuit against Yellow Transportation, and complaints of unfair job assignments, coworker harassment, inequitable treatment, and failure to investigate prior complaints.

The district court assumed arguendo that Hernandez established a prima facie case of retaliation based upon his discharge. This is not in dispute. The legitimate, nondiscriminatory reason offered by Yellow Transportation – that Hernandez violated the workplace policy – is also not contested. The issue on appeal concerns the final burden, whether Hernandez would not have been fired “but for” his participation in protected activities.

As previously discussed, a plaintiff may avoid summary judgment on “but for” causation by demonstrating “a conflict in substantial evidence on this ultimate issue.” Long, 88 F.3d 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.” Id. (quotation marks and citation omitted).

On appeal, Hernandez presents two arguments to demonstrate “but for” causation. His first argument is that his firing was in close temporal proximity to his participation in protected activities. “But for” causation, however, cannot be established by temporal proximity alone. See Strong, 482 F.3d at 808.

Hernandez’s second argument is that he presented evidence of pretext, which in addition to temporal proximity, is sufficient to establish “but for” causation. See Shackelford, 190 F.3d at 408-09. According to Hernandez, the following is evidence of pretext: (a) Yellow Transportation’s investigation into the incident with Green was not governed by normal procedures; (b) the post- termination grievance process was unfair; (c) Green and Hernandez were treated unequally; and (d) similarly-situated employees were treated more fairly.

a. Investigation into incident with Green


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