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Case: 09-10183 Document: 00511475175 Page: 1 - page 8 / 19





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Case: 09-10183 Document: 00511475175 Page: 8 Date Filed: 05/12/2011

No. 09-10183

Hernandez and Trevino argue that the district court’s conclusions resulted in the ignoring of substantial evidence of harassment. They refer us to one of our decisions in which we recognized the relevance of evidence of discrimination against other individuals in the plaintiff’s protected class. Shattuck v. Kinetic Concepts, Inc., 49 F.3d 1106, 1109-10 (5th Cir. 1995). That decision applied the Age Discrimination in Employment Act. Id. at 1108. We held that it was proper to exclude evidence allegedly showing discrimination on other grounds such as race or sex, but evidence of discrimination against other members of a plaintiff’s protected class was admissible. Id. at 1109-10. Among our authorities for that holding were decisions involving age, race, and sex discrimination claims. Id. at 1110 n.9.

Another decision of this court from the same year held that under a state discrimination in employment statute involving workers with disabilities, evidence of the same sort of discrimination against workers other than the plaintiff was admissible. Kelly v. Boeing Petroleum Servs., Inc., 61 F.3d 350, 358 & n.10 (5th Cir. 1995). That was because intentional discrimination had to be shown under the state statute, making relevant the evidence of a climate of that form of discrimination. Id. Conversely, anecdotes about discrimination or verbal harassment on other grounds were not relevant because there was too weak a correlation between the different forms of potential animus. Id. at 357-58.

We have held in the context of sex discrimination that harassment of women other than the plaintiff is relevant to a hostile work environment claim. Waltman v. Int’l Paper Co., 875 F.2d 468, 477-78 (5th Cir. 1989). In fact, we agreed that “‘a woman who was never herself the object of harassment might have a Title VII claim if she were forced to work in an atmosphere in which such harassment was pervasive.’” Id. at 478 (quoting Vinson v. Taylor, 753 F.2d 141, 146 (D.C. Cir. 1985)). In Waltman, we also found extensive evidence of sex discrimination targeting the plaintiff, including “evidence that several different


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