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Case: 09-10183 Document: 00511475175 Page: 1 - page 6 / 19





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Case: 09-10183 Document: 00511475175 Page: 6 Date Filed: 05/12/2011

No. 09-10183

did perceive to be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998) (citation omitted).

Both Hernandez and Trevino refer to numerous events of harassment, some directed at them and others at coworkers. The district court held there were only four incidents of harassment, two each against Hernandez and Trevino, that were severe enough to affect their employment at Yellow Transportation. We examine those first and then consider whether other relevant events were identified before the district court.

Hernandez was called a racially derogatory term on one occasion and once viewed a poster or letter also referring derogatorily to Mexicans. Trevino once heard Mexicans referred to in a derogatory manner over a company radio and had seen a discriminatory posting or drawing. The district court found these incidents were “plainly offensive to a Hispanic person,” but they could not support a hostile work environment claim because they were so few and occurred over more than a decade of employment. If in fact only two incidents such as these occurred over a ten-year period, this would not create a fact issue that the harassment was “sufficiently severe or pervasive” such that “an abusive working environment” had been shown. See Ramsey, 286 F.3d at 268.

The district court rejected much of Hernandez and Trevino’s evidence. Whether that rejection was proper is the key appellate issue on these claims. In the district court’s memorandum opinion, the irrelevance of one key incident was explained. Hernandez had been threatened with a knife by a coworker, Ron Green, but there was no evidence that the event had anything to do with race. Hernandez agreed that Green never used racial epithets towards him. At most, the incident revealed that Green and Hernandez had a long-running dispute that would eventually lead to both men being disciplined.

Other evidence was rejected by the district court because even if it reflected hostility towards one of the plaintiffs, there was no evidence that the


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