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Case: 09-10183 Document: 00511475175 Page: 1 - page 5 / 19





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Case: 09-10183 Document: 00511475175 Page: 5 Date Filed: 05/12/2011

No. 09-10183

Besides only being required to examine the evidence pointed out to him in the extensive record, the district judge also said he would consider admissible evidence only, thereby rejecting hearsay. That limitation also is correct. It is a proper summary judgment objection “that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2).

We start by examining what the evidence had to support. To establish a claim of hostile work environment under Title VII, a plaintiff must prove:

(1) [he] belongs to a protected group; (2) [he] was subjected to unwelcome harassment; (3) the harassment complained of was based on race; (4) the harassment complained of affected a term, condition, or privilege of employment; (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action.

Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002) (citations omitted). It is undisputed that Hernandez and Trevino belong to a protected group as Hispanics. The other factors are not so clear.

Harassment affects a “term, condition, or privilege of employment” if it is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Id. (quotation marks and citations omitted). Workplace conduct “is not measured in isolation.” Id. (quotation marks and citation omitted). In order to deem a work environment sufficiently hostile, “all of the circumstances must be taken into consideration.” Id. This includes “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Id. (quotation marks and citations omitted). To be actionable, the work environment must be “both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact


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