Garrett et al v. Tyco Fire Products LP

Filing 37

MEMORANDUM OPINION. Signed by Magistrate Judge Staci G Cornelius on 3/14/18. (MRR, )

FILED
2018 Mar-14 AM 10:43
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

JOSEPH GARRETT, et al.,
Plaintiffs,
v.
TYCO FIRE PRODUCTS, LP,
Defendant.

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Case No.: 2:16-cv-00372-SGC

MEMORANDUM OPINION1
Plaintiffs Joseph Garrett, Theresa Hall, Garron Mixon, Rodney Watts,
Thomas Foster, and Darren Turner filed a complaint against Tyco Fire Products,
LP, alleging racial harassment in violation of 42 U.S.C. § 1981. (Docs. 1, 12, 20).
The court has before it the June 15, 2017 motion for summary judgment filed by
Tyco. (Doc. 26). The motion was deemed submitted without oral argument as of
September 28, 2017. After a thorough review of the briefs and evidence, the
motion is due to be granted for the following reasons.
I.

STATEMENT OF FACTS
Defendant Tyco Fire Products, LP (“Tyco”) manufactures water-based fire

suppression system components and ancillary building construction products.
1

The parties have consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c).
(Doc. 10).

(Doc. 27-13 at 2). The six Plaintiffs are all former hourly workers at Tyco’s
Anniston plant who allege they were subjected to racially harassing comments and
graffiti at the plant in violation of 42 U.S.C. § 1981. (Docs. 12 & 20).
A. Tyco’s anti-discrimination and anti-harassment policies
Every newly hired employee, including the six Plaintiffs, attends orientation
sessions where all Tyco policies for the Anniston facility are explained. (Doc. 2713 at 5). As part of orientation, a member of Tyco management reviews the antiharassment and anti-discrimination policies in the employee handbook, the Tyco
guide to ethical conduct, and the “Speak Up” resources. (Id.).
During orientation, the process of making a complaint is explained. (Id.).
The handbook encourages employees to bring any complaints of harassment to
Human Resources or to their supervisors.

(Id.).

If an employee feels

uncomfortable complaining at the plant level, the handbook directs the employee
to complain to the director of Human Resources for the Americas team or through
the Tyco concern line contained in the handbook and posted in the plant. (Id. at 3,
10-12, 18-19).
Additionally, Tyco provides employees with training on various ethical
issues and trains its employees on a yearly basis on the guide to ethical conduct.
(Id. at 4, 13-17). The guide provides a website where all Tyco’s policies and
procedures are located. (Id. at 4, 16). The guide details the resources available for
2

an employee to lodge a complaint. (Id. at 4, 13-17). The guide also provides
“Speak Up” resources, wherein several additional avenues for lodging complaints
are listed, including a toll-free 1-800 concern line, legal or compliance teams, and
the Tyco ombudsman office. (Id. at 4, 16).

An employee can also submit a

complaint via the internet. (Id. at 4).
The employee handbook was published and distributed to all employees at
the Anniston plant throughout the Plaintiffs’ employment. (Id. at 3). A summary
of both the guide to ethical conduct and the “Speak Up” resources was posted by
the time clock in the plant. (Id. at 18-19).
B. Plaintiffs’ employment with Tyco
1. Thomas Foster
a. Allegations of harassment
Thomas Foster worked at the Anniston foundry from 19962 until September
of 2013. (Doc. 27-1 at 9, 25). Foster’s direct supervisor during his employment
with Tyco was superintendent Phillip Shivers. (Id. at 15). Although his direct
supervisor was David Landers when he was in the finishing department, Foster
remained under the supervision of Shivers, who was in charge of the entire third
shift. (Id. at 15-16).

2

When Foster began his employment, he worked for Central Castings. (Doc. 27-1 at 9). Central
Castings later became Tyco. (Id.).
3

Shivers made a single racial comment to Foster when he was working in the
mold department sometime in the 2000s. (Id. at 27-29). Foster turned off the
furnace to recharge it, and Shivers asked, “What the hell is going on, n*****?
What happened?” (Id. at 29).

Additionally, Foster testified Shivers wore a

helmet with a hand-drawn lightning bolt on the side. (Id. at 33). Foster was told
after his termination, in a meeting he attended with the other Plaintiffs, the
lightning bolt symbolized part of the Ku Klux Klan.3 (Id. at 7-8, 33-34).
Foster testified Landers used the word “boy” on two occasions. (Id. at 27,
30-32). In March 2011, Landers said, “You need to hurry up, boy, and get this
stuff cleaned up, get these shocks and stuff.” (Id. at 31). In September 2013,
Landers approached Foster after he mistakenly ran his forklift into the duct work
in the ceiling of the plant and said, “Oh, boy, what have you done now?” (Id. at
30-31).

Foster also claims someone he could only identify as “Ken” said

something to the effect of “how many black men do you think I’ve done killed
now?” after Foster complained they were working too hard. (Id. at 32).
Additionally, in the summer of 2008, Foster saw a drawing in a stall in the
men’s restroom of a black person’s face with a rope drawn around the face. (Id. at

3

Shivers testified he previously worked around electricity and high voltage equipment and he
attached lightning bolt stickers to his helmet because it is the common symbol for working
around electricity. (Doc. 27-11 at 24).
4

27-28). The next time he went to the restroom, within a month or so, it had been
painted over and removed. (Id. at 28).
b. Training and reporting of allegations
Foster was trained on Tyco’s policies and understood he could take
complaints to his supervisor or to Human Resources. (Id. at 12-13, 43). Foster
admits the policies were explained to him when he was trained on the handbook in
2003, after Tyco took over the plant.

(Id. at 12, 44).

Foster signed an

acknowledgment form on November 11, 2003, stating, “I have received the
handbook, and I understand that it is my responsibility to read and follow the
policies in the handbook and any changes made to it,” but testified in his
deposition he did not receive a handbook on that occasion. (Id.). He testified he
signed the form because he feared for his job but admitted no one threatened his
job or otherwise pressured him. (Id. at 11). Foster has trouble reading but never
asked anyone to read the policies to him, even though “they would [have], but [he]
didn’t never ask them.” (Id.).
Foster never made any complaints to Human Resources or to anyone else in
Tyco management about any of the alleged harassing conduct at any point in time
during his employment with Tyco. (Id. at 13, 37). Foster testified he did not
complain because Human Resources “wouldn’t do nothing.” (Id. at 12-13). The
first time Foster made any complaint of discrimination was when he filed his
5

EEOC Charge after his employment was terminated. (Id. at 13, 48). Foster did
not identify any harassment and did not mention the “boy” or “n” comments in his
EEOC charge. (Id. at 31, 48).
2. Theresa Hall
a. Allegations of harassment
Theresa Hall first worked for Tyco from 2001 until 2004, when she was
terminated for attendance violations. (Doc. 27-2 at 7-8).

She was employed

subsequently from February 2013 until January 2014, when she was again
terminated for attendance issues. (Id. at 8; Doc. 27-3 at 1).
Hall contends David Landers said “y’all” when addressing her and three
other female African-American employees. (Doc. 27-2 at 23-24). Specifically,
Landers would say things such as, “Y’all. Y’all lazy.” and “Y’all ain’t getting
nothing out.” (Id. at 23). These comments occurred 10-15 times over a 2-3 month
period in late 2013. (Id. at 25). Aside from these “y’all” comments, Landers never
directed any other supposedly racial comments at her. (Id. at 25).

She did,

however, hear Landers ask “Where Joe Garrett at? Where that boy at?” (Id. at 24).
In addition to these comments, Hall saw lightning bolts on Phillip Shivers’ helmet.
(Id. at 28, 29; Doc. 27-3 at 35).

She testified she did a Google search for

“thunderbolt” and “it had something about Nazi.” (Doc. 27-2 at 29).

6

b. Training and reporting of allegations
During her first employment with Tyco, Hall was trained by the Human
Resources manager and understood she could report any harassing behavior to her
supervisor or to Human Resources. (Id. at 15). Hall received a handbook during
her first employment and was trained on the harassment policies during her newemployee orientation. (Id.). Upon her re-hire in February 2013, Hall again went
through new-employee orientation and was provided similar training by Human
Resources assistant Heidi Chambers.

(Id. at 12).

Hall signed a form dated

February 18, 2013, acknowledging she received training on the EEO policies, the
employee handbook, and the topic of “Tyco Complaint Procedures; Resolution,
Reporting to Chain of Command; No Retaliation, and Contact Numbers.” (Id. at
17; Doc. 27-3 at 5). Although she signed this acknowledgement of receipt, Hall
testified she never received a copy of Tyco’s employee handbook and she could
not recall receiving training on the harassment and discrimination policies. (Doc.
27-2 at 14, 16-17).
Hall also received training on Tyco’s guide to ethical conduct and signed an
acknowledgment form confirming her training. (Id. at 17-18, 21; Doc. 27-3 at 8).
The form, signed by Hall on February 18, 2013, states: “I hereby certify that I
have read and understand the information set forth in the Tyco Guide to Ethical
Conduct and will comply with those policies and principles in my daily work
7

activities . . . Should I have a concern about a violation of Tyco policy, I will raise
the concern through the appropriate channels as outlined in the Guide.” (Doc. 27-3
at 8). Hall was aware of Tyco’s corporate complaint hotline number and knew the
number was posted in the hallway of the plant. (Doc. 27-2 at 18).
Hall never reported any of the alleged harassing conduct to anyone in Tyco
management or Human Resources. (Id. at 26). Hall chose not to report any
conduct because she “felt like [she] handled” it herself and did not want to be
labeled a “snitch.” (Id. at 15, 26). The first time Hall made any complaint of
discrimination was with her February 7, 2017 EEOC charge, when she alleged she
was discriminated against in her termination because of her race. (Id. at 11; Doc.
27-3 at 1). The EEOC charge did not make any reference to racial harassment or
the alleged “y’all” or “boy” comments. (Doc. 27-3 at 1).
3. Garron Mixon
a. Allegations of harassment
Mixon worked for Tyco for three months from June 2013 until September
2013. (Doc. 27-4 at 14, 45). Mixon testified he was subjected to four instances of
racial slurs from Phillip Shivers over approximately five days in September 2013.
(Id. at 27, 30). On one occasion, Mixon asked Shivers for a pair of work gloves,
and Shivers responded by saying to another individual, “[L]et me help this n*****
out.” (Id. at 27-28). On another occasion, Shivers said, “[D]amn, your black ass in
8

here again? I don’t like you mother f*cker. I don’t like you.” (Id. at 27). Shivers
also made a comment regarding Mixon’s blood pressure medication, saying,
“[D]amn, your black ass don’t know how to take a pill?” (Id.). Finally, Shivers
called Mixon a “lazy n*****” on one occasion when he became dizzy at work and
sat down. (Id. at 27, 29).
Additionally, Mixon saw the phrase “I hate n*****s” written in the restroom
on two occasions within approximately a one week period. (Id. at 36). The graffiti
was later removed. (Id.). He could not recall if he saw racial graffiti in the
restroom aside from these two occasions. (Id. at 37). Mixon also saw lightning
bolts on Shivers’ and David Landers’ hardhats and equated them to a white
supremacy symbol. (Id.).
b. Training and reporting of allegations
Mixon attended new employee orientation and signed a form dated June 18,
2013, acknowledging the handbook, Tyco policies, and guide to ethical conduct
were covered in the training and that there was “no tolerance for violence,
harassment, drugs, weapons.”

(Id. at 15-17).

Mixon also signed an

acknowledgment of receipt of the handbook stating, “I have received the
handbook, and I understand that it is my responsibility to read and follow the
policies in this handbook and any changes made to it.” (Id. at 17-18, 52). Mixon
attended a one-hour training session on the Tyco guide to ethical conduct and
9

signed an acknowledgment confirming he read and understood the guide and he
should raise any possible violations through the appropriate channels. (Id. at 20,
60 & 61). Mixon testified, however, he never saw these policies despite his
signature on the forms acknowledging receipt of the policies. (Id. at 20-21).
Mixon did not report any of the alleged comments to Human Resources or
Tyco management because he “didn’t trust them.” (Id. at 30). Mixon did not
report the graffiti because he was told someone else reported it and he felt there
was no point in doing so. (Id. at 38-39). Mixon did not report the lightning bolts
on Shivers and Landers’ helmets. (Id. at 38). However, after Mixon was informed
of his termination by Human Resource representative Grey Terry, Mixon testified
he told Terry “[W]ell you’ve got some people in high positions that seem to think
it’s okay to call somebody a lazy n****** or lazy SOB or whatever and you don’t
see anything wrong with that.” (Id. at 31). In response, Mixon stated Terry told
him, “[G]ood luck boy. Good luck finding you another job.” (Id. at 33).
Mixon filed an EEOC charge on February 7, 2014, alleging discrimination in
his termination. (Id. at 45). The allegations contained in his EEOC charge do not
mention any alleged racist comments or graffiti. (Id.).

10

4. Rodney Watts
a. Allegations of harassment
Watts worked for Tyco from October 2011 until January 2016. (Doc. 27-5
at 8, 10; Doc. 27-6 at 16). Watts testified he heard the words “boy” and the “n”
word “constantly” and “every day” while working at Tyco. (Doc. 27-5 at 17, 28).
Specifically, Watts testified about one incident in 2012, when he heard
Phillip Shivers use the “n” word. (Id. at 26, 28). Shivers was frustrated with
downtime on the furnace and said, “[M]an, I don’t understand. Y’all n*****s.
These n*****s just can’t do right. Y’all n*****s - - I don’t understand. Y’all
n*****s just don’t do right. I don’t understand what the problem is.” (Id. at 27).
Watts responded by telling Shivers he could not call him that name, but Shivers did
not apologize. (Id. at 28).
Watts testified Shivers used the word “boy” throughout the first year of
Watts’ employment with Tyco. (Id. at 26). On one occasion, Watts asked Shivers
for some welding gloves, and Shivers responded, “I ain’t got nothing to do with
that, boy. Get out of my office.” (Id. at 28). Another time, Watts was driving a
forklift and Shivers said, “[H]ey, boy, you think you can go give one of the bull
pushers a break?” (Id.). Watts responded, “I’m not a boy. Come on, man. I’m a
man.” (Id.). Shivers also asked a group of workers, “I want y’all boys to be

11

careful now. I want y’all boys to do this.” (Id. at 29). Watts also saw the lightning
bolts on Shivers’ helmet and equated it with a Nazi symbol. (Doc. 27-6 at 1).
Watts testified Greg Terry also used the term “boy” on several occasions.
In 2014, in response to Watts’ interest in a different position, Terry said “[L]ook,
boy, what you can do is come in on your off day and try and get some experience
like that.” (Doc. 27-5 at 30). On two occasions, Terry held the door for him when
they were coming into the plant together and he said, “[C]ome on in, boy,” or
words to that effect. (Id. at 30-31). Watts also saw a tattoo of the confederate flag
on Terry’s right forearm. (Doc. 27-6 at 1).
Watts testified supervisors Patrick Young and Joe McLain and plant
manager Paul Campbell also used the term “boy.” According to Watts, Young
used the word “boy” in a “sneaky way,” such as in 2014 Young screamed, “[H]ey
boy, I need you to put that pattern on the pattern table,” when they were about to
start production. (Doc. 27-5 at 33-34). Watts overheard McLain say to another
person, “I got a black boy as a son-in-law . . . . I don’t know why she . . . ended
up marrying that boy.” (Id. at 34). Finally, in 2014 or 2015, an employee spilled
hot iron onto the floor, and Campbell came to the area and said, “[W]hat’s wrong
with that boy?” (Doc. 27-6 at 1-2).
Sometime in 2014, Watts saw the “n” word written on the wall of the first
bathroom stall in the men’s restroom. (Doc. 27-5 at 37). Although he did not tell
12

anyone about the graffiti, it was removed within approximately two months. (Id.
at 38). Additionally, Watts saw a rope tied into a noose hanging from a water
hydrant pipe in the back of the plant. (Id.). The rope was there for approximately
a month, and Watts never reported it. (Id.; Doc. 27-6 at 1).
b. Training and reporting of allegations
During his orientation, Tyco reviewed the handbook, anti-harassment
policy, and diversity policy with Watts. (Doc. 27-5 at 9, 12-14; Doc. 27-6 at 1822). On October 17, 2011, Watts signed an acknowledgment of training on
Tyco’s guide to ethical conduct and a statement he was given handouts regarding
the guide. (Doc. 27-5 at 8-9 13; Doc. 27-6 at 17). Watts also signed a form the
same day confirming he was trained on Tyco policies, including the antiharassment and diversity awareness policy, the open door policy, and the Equal
Employment Opportunity Policy.

(Id. at 21-23).

Watts received additional

training on the guide to ethical conduct in December of 2011, 2012, and 2014.
(Id. at 23-31).
Watts never made any complaints of race discrimination or harassment to
anyone in Tyco management or to anyone in Human Resources at the plant. (Doc.
27-5 at 19). Watts testified that in May 2014, he made a telephone call to an

13

unknown number4 from his cell phone, but he does not recall with whom he spoke.
(Id. at 15-16). During the call, Watts reported supervisors were “calling black men
boys and the ‘n’ word. And [he] didn’t approve with it.” (Id.).
On June 23, 2014, while he was still employed at Tyco, Watts filed a charge
of discrimination with the EEOC alleging he was discriminated against because of
his race. (Doc. 27-6 at 32). Specifically, Watts alleged he was not considered for
a position because of his race, he was paid less than similarly situated white
employees, and he was disciplined differently than white employees with regard to
the attendance policy. (Id.). The allegations contained in his EEOC charge do not
mention any alleged racist comments, graffiti, noose, or any other harassment.
(Id.).
5. Darren Turner
a. Allegations of harassment
Darren Turner worked at the Anniston facility from June of 2010 until
October of 2014, when his employment was terminated for leaving the plant
without proper authorization from management. (Doc. 27-7 at 6, 37). Turner
testified Shivers called him the “n” word on two occasions in 2011. (Id. at 26-29).
The first time was in April 2011 when Shivers slapped the shield on Turner’s

4

He got the number from someone at the plant but could not recall anything about the phone
call, i.e. the person’s name, location, or position, other than he called a 1-800 number and the
person sounded white. (Doc. 27-5 at 16).
14

helmet when he made a mistake in the pouring iron and called him the “n” word.
(Id. at 26-27). Shivers again called him the “n” word in late July 2011 during a
heated exchange in Shivers’ office. (Id. at 28-29).
Turner testified Shivers used the “n” word on other occasions as well.
Turner recalled a day when hand soap was smeared on the mirror in the men’s
bathroom and Shivers said, “[I]t wasn’t nobody but that n*****,” referring to
Turner. (Id. at 32-33). Another time, Turner overheard Shivers call Mixon the “n”
word when Mixon asked Shivers for a pair of work gloves. (Id. at 36). Turner
testified Shivers also referred to him as “boy” on a regular basis. (Id. at 31).
Turner also testified about other employees he contends contributed to the
alleged harassment. For instance, Eddie Till said, “[W]hat up boy” to Turner in the
breakroom in 2012 or 2013. (Id. at 21). Another example was during a training
session in 2012 or 2013, an unspecified person asked a question about how to tie a
hangman’s knot.

(Id. at 23).

Additionally, Turner testified a maintenance

employee he identified as “Gaddy” told him to “get [his] black ass out there and
get that damn pizza,” when Turner had a pizza delivery waiting at the gate to the
facility,y and when “Gaddy” brought his wife to the facility, he told Turner,
“[T]his one ain’t going black,” in reference to his wife. (Id. at 22).
Finally, Turner testified he was offended by the words “master” and “slave”
on two electrical boxes that operated the furnace. (Id. at 26). Turner saw the “n”
15

word written in the handicap bathroom stall on the wall in green marker sometime
in 2012. (Id. at 14-15). Turner did not report it to anyone. (Id. at 15).
b. Training and reporting of allegations
Turner attended orientation when first hired and was trained on Tyco’s antidiscrimination and anti-harassment policies. (Doc. 27-7 at 10-11; Doc. 27-8 1317). Turner testified the handbook was reviewed with him during his orientation,
but he was not given a copy to keep. (Doc. 27-7 at 10-11, 25). On June 28, 2010,
Turner signed an acknowledgement stating, “I have read the handbook, and I
understand that it is my responsibility to read and follow the policies in this
handbook and any changes made to it.” (Doc. 27-8 at 17). He also signed an
acknowledgment of receipt of Tyco’s Equal Employment Opportunity Policy. (Id.
at 28).

Turner understood racial harassment was not tolerated and the anti-

harassment policy was specifically covered in his orientation. (Doc. 27-7 at 25).
He was also aware of the EEO postings in the plant located by the time clock.
(Doc. 27-8 at 3-4).
Turner never complained to Human Resources representative Greg Terry
about any alleged harassment.5

(Doc. 27-7 at 12, 34).

Turner contends he

complained by responding to Phillip Shivers and Patrick Young when he did not

5

Turner did complain about his pay to Terry, and the issue was resolved to Turner’s satisfaction.
(Doc. 27-7 at 39).
16

like comments they made to him. (Id. at 11-12, 34-35). Otherwise, he made no
formal complaints to Tyco management. (Id. at 12).
That being said, Turner testified he sent an email in late 2010 or early 2011
to an unidentified person he described as a “heavy-set white guy” he saw on the
Tyco website, complaining of discrimination. (Id. at 11).

Turner did not recall

the name, title, or role of the person he emailed. (Id.). Turner did not produce a
copy of this email during discovery. (Doc. 28 at 30).
6. Joseph Garrett
a. Allegations of harassment
Garrett began working for Tyco in November 2012 and remained employed
until he was terminated on May 25, 2015. (Doc. 27-9 at 10, Doc. 27-10 at 38).
Garrett identified the following allegations of racial harassment he personally
observed during his employment:6
 Shaun Griffin said, “You don’t get no raise boy!” in response to a
question about a raise. (Winter 2012)
 David Landers said “You don’t need nothin’ new boy!” in
response to a request for a new grinder wheel. (Winter 2012)
 Phillip Shivers said to Joseph Garrett, Rodney Watts, Darren
Turner “Don’t you boys got something to do?” after riding up on a
forklift. (February)
6

Garrett prepared this list the week before his deposition. (Doc. 27-9 at 27). In its recitation of
the facts, Defendant omitted the incidents where co-workers relayed racial comments made by
other employees outside Garrett’s presence to him as double-hearsay. (Doc. 28 at 29 n.1).
Plaintiff did not object to this omission and the court omits them as well.
17

 David Landers said “Boy you don’t need no heat unless it’s below
50 degrees” in response to me turning on the heat. (Winter 2013)
 David Landers said “Boy, you ain’t gonna nothing but take it to the
trade day (flea market) and sell it.” in response to my request for a
new grinder wheel and grinder Shaun Griffin was standing there as
well laughing hysterically. (February 2013)
 Phillip Shivers said to me, “Boy, you haven’t been here long
enough to work on the melt deck.” (March 2013)
 Shaun Griffin said “Boy, I’m tired of giving you people tools; Use
what you have until you use it up.” (March 2013)
 Tim McCloon said “Boy, you can’t read!” in response to my
reading of a safety label a galvanized paint can. (March 2013)
 Phillip Shivers said “Boy, you don’t won’t to do no work. You
people always get sick when it’s time to do work.” This comment
was in response to me getting sick while working with galvanized
paint. (April 2013)
 Mike Kimball said “Boy, what the f*ck you think this is? This
ain’t no race track.” I reported this to Philip Shivers and Greg
Terry. (July 2013)
 Greg Terry said that they said you were racing. And then explained
that “they” are your people. (July 2013)
 Shaun Griffin said “Stupid n*****s make me sick!” as I was
walking out of his office after asking for a new grinder and grinder
wheel. (August 2013)
 Phillip Shivers said “What the hell that damn n***** stop the line
for?” because the parts Were coming off the line too fast? (Fall
2013)
 Greg Terry said “You people gotta do better.” This comment was
18

made to myself and 2 other black men. (Fall 2013)
 Greg Terry said “You people do the most,” in response to a group
of black people joking around on break. (May 2014)
 Joe McClain said “I aint got nothing for you boy!” when I asked
about a job on the melt deck. (June 2014)
 Joe McClain said to me “If you don’t shave that beard, your black
ass won’t have a job.” (August 2014)
 Don Griggs said that, “You people are always on the phone.”
(Spring 2015)
(Doc. 27-10 at 33-35) (emphasis omitted).
In addition to these comments, Garrett testified there was a lanyard in a back
part of the plant in 2012 that he believed represented a noose. (Id. at 12). Garrett
also saw swastikas, the “n” word, “go back to Africa,” and “KKK” written on the
bathroom stalls at various times throughout his employment. (Id. at 12-13). Each
time he saw the graffiti, an employee responsible for restroom maintenance would
paint over the graffiti. (Id.). Garrett also recounted the lightning bolts on Shivers’
helmet and related them to swastika signs. (Id. at 13-14). He also saw the
Confederate flag tattooed on Terry’s forearm. (Id. at 14).
b. Training and reporting of allegations
Although Garrett was scheduled to attend orientation on November 13,
2012, with seven other new hires, he was late, and Human Resources assistant
Heidi Chambers provided Garrett with an individual orientation the next day.
19

(Doc. 27-9 at 10-11; Doc. 27-10 at 18-19).

Chambers reviewed the company

handbook and the policies therein with Garrett. (Doc. 27-9 at 11; Doc. 27-10 at
20). Garrett signed an acknowledgement form stating he received a copy of the
handbook. (Doc. 27-9 at 11-12; Doc. 27-10 at 20). Garrett also signed a document
entitled “Hourly Policy Review Outline” which contained his acknowledgment on
the complaint process and concern line, directive to report harassment or other
EEO issues, and Tyco’s commitment to equal employment opportunity, among
other items. (Doc. 27-10 at 26-27).
Garrett received training on the Tyco handbook, as well as the antiharassment policy, anti-discrimination policy, and guide to ethical conduct. (Doc.
27-9 at 12, 16-17; Doc. 27-10 at 19, 28). Garrett understood harassment should be
reported to Tyco management or to Human Resources. (Doc. 27-9 at 12). Garrett
was also aware of the posting near the time clock regarding harassment and
providing telephone numbers employees could call to lodge complaints. (Id.).
Garrett made a number of complaints to Greg Terry in 2013.

Garrett

complained in 2013 about Shaun Griffin using the “n” word. (Id. at 23-24, 36).
Terry later told Garrett he addressed the issue with Griffin and to let him know if
he had any further problems. (Id. at 24). Garrett had no further issues with
Griffin. (Id.). Additionally, during an investigation of an incident where Garrett
was accused of racing motorcycles in the parking lot with a co-worker in July
20

2013, Garrett complained maintenance supervisor Mike Kimbrell yelled, “Boy,
this ain’t no mother f*cking racetrack. Where the f*ck you think you are at?” (Id.
at 24). Although Kimbrell denied the allegation, Terry reviewed Tyco’s antiharassment policies with him. (Doc. 27-13 at 6). Garrett did not have any further
problems with Kimbrell. (Id. at 25). Garrett also complained to Terry that he had
not received a position in the melt/mold department. (Doc. 27-9 at 39). Terry
reviewed the situation and got Garrett moved into the position. (Id.).
Garrett filed his first charge of discrimination with the EEOC on February
14, 2014. (Doc. 27-10 at 29). In his charge, Garrett alleged he heard “boy” and
the “n” word used by management at the Anniston facility. (Id.). Tyco Human
Resources manager Dwendy “Dee” Jones investigated Garrett’s allegations of
harassment in his EEOC charge and met with Garrett for approximately an hour on
March 6, 2014. (Doc. 27-9 at 19; Doc. 27-13 at 29-30). Jones asked Garrett to
describe all his allegations of harassment and discrimination. (Doc. 27-9 at 34;
Doc. 27-13 at 30, 32). According to Garrett, he told Jones about nine incidents of
racial harassment,7 although during his deposition he produced a list of twenty-four

7

The incidents Garrett testified he reported to Jones are described on his list as follows: Cody
Burns told me that Shaun Griffin and David Landers called me a “stupid n*****” while
laughing. (Winter 2012); I asked Cody to go me a grinder wheel and Cody went to do it and was
told by Shaun Griffin that “That n***** don’t need no tools; Let him use what he got!” (Winter
2012); Phillip Shivers said to Joseph Garrett, Rodney Watts, and Darren Turner “Don’t you boys
got something to do?” after riding up on a forklift. (February); Shaun Griffin said “Boy, I’m tired
of giving you people tools; Use what you have until you use it up.” (March 2013); Harley told
me that Phillip Shivers said “I can’t wait to fire that n*****!” (April 2013); Mike Kimbrell said
21

incidents occurring up to that date. (Doc. 27-9 at 27; Doc. 27-10 at 33-34). Jones’
notes of her conversation with Garrett recount three specific incidents: (1) the
“boy” comment made by Kimbrell during the motorcycle racing incident; (2) a
former employee told Garrett that Shaun Griffin referred to Garrett as a “damn
n*****;” and (3) another employee told Garrett he heard Shivers and Griffin say
“we are going to make those n****** work.” (Doc. 27-13 at 36-37). Garrett did
not mention any graffiti to Jones. (Doc. 27-13 at 32).
Jones asked Garrett to provide a written statement, but he refused and told
Jones to use the allegations in his EEOC Charge. (Doc. 27-13 at 33). Jones gave
Garrett her cellular telephone number to call if he had any further issues. (Doc. 279 at 33; Doc. 27-13 at 33). Although Garrett later remembered additional instances
he had not recounted to Jones, Garrett never contacted Jones to supplement his
conversation. (Doc, 27-9 at 34-35; Doc. 27-13 at 33).
Jones investigated Garrett’s claims and interviewed the witnesses identified
by Garrett. (Doc. 27-13 at 33-34). She attempted to contact those witnesses who
no longer worked at the plant, but none of them returned her calls. (Id.). Jones
also randomly selected other employees at the plant to interview regarding the
“Boy, what the fuck you think this is? This ain’t no race track.” I reported this to Phillip Shivers
and Greg Terry. (July 2013); Dustin told him that “Damn, we almost had that n*****, but there
were pictures (freeze frames) not video of him riding his motorcycle in the parking lot.” (July
2013); Greg Terry said that they said you were racing. And then explained that “they” are your
people. (July 2013); Shaun Griffin said “Stupid n***** make me sick!” as I was walking out of
his office after asking for a new grinder and grinder wheel. (August 2013). (Doc. 27-9 at 27;
Doc. 27-10 at 33-34).
22

plant environment. (Id. at 30). No one interviewed corroborated Garrett’s claims.
(Id. at 33).
Garrett filed a second EEOC charge on October 2, 2014. (Doc. 27-10 at 36).
In his charge, he complained he was denied a machinery maintenance II position
on June 24, 2014, because of his race and in retaliation for his prior charge. (Id.).
Garrett did not make any allegations of harassment or that Tyco’s investigation
into his first EEOC charge was inadequate. (Id.).
Tasia Jones replaced Greg Terry as the director of Human Resources at the
facility in December of 2014. (Doc. 27-13 at 3). Garrett made a complaint about
his move from the melt/molding department. (Doc. 27-10 at 1). While lodging
that complaint, Garrett told Tasia Jones the term “boy” and the “n” word “were
used loosely within the plant. (Doc 27-9 at 40). Specifically, Garrett told Jones
that Joe McClain previously told a co-worker Garrett was a “sorry n*****,” and
Shaun Griffin previously told someone his grandfather was the grand wizard of the
KKK, both of which occurred months before Jones arrived at the facility. (Id.).
Garrett also told Jones’ supervisor, Richard Oakes, about the comment by
McClain. (Doc. 27-10 at 1).
Garrett’s complaint was resolved to his satisfaction when he was allowed to
return to the melt/molding department. (Id.). Jones told Garrett she “handled” the

23

issues raised about Griffin and McClain. (Id.). Garrett testified the only problem
he had thereafter was “little picking” and scrutiny of his work. (Id.).
Garrett filed a third charge of discrimination with the EEOC after his
termination. (Doc. 27-10 at 38). In that charge, Garrett alleged he was “subjected
to racially derogatory terms such as boy and n*****.” (Id.). He contended he was
denied a promotion and terminated because of his race and in retaliation for his
previous charges of discrimination. (Id.).
II.

STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper

“if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party asking for summary
judgment always bears the initial responsibility of informing the court of the basis
for its motion and identifying those portions of the pleadings or filings which it
believes demonstrate the absence of a genuine issue of material fact. Id. at 323.
Once the moving party has met its burden, Rule 56(e) requires the non-moving
party to go beyond the pleadings and by his own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designate specific facts showing
there is a genuine issue for trial. See id. at 324.
24

The substantive law identifies which facts are material and which are
irrelevant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All
reasonable doubts about the facts and all justifiable inferences are resolved in favor
of the non-movant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.
1993). A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If the
evidence is merely colorable, or is not significantly probative, summary judgment
may be granted. See id. at 249.
III.

DISCUSSION
To establish a racially hostile work environment, a plaintiff must show (1)

he or she belongs to a protected group; (2) he or she has been subject to
unwelcome harassment; (3) the harassment was based on a protected characteristic
of the employee, such as race; (4) the harassment was sufficiently severe or
pervasive to alter the terms and conditions of employment and create a
discriminatorily abusive working environment; and (5) the employer is responsible
for the hostile environment under a theory of vicarious or direct liability. 8 Miller v.
Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002); Henson v. City of
Dundee, 682 F.2d 897, 903-05 (11th Cir. 1982).

8

Defendant does not dispute

Plaintiffs’ claims under Section 1981 “have the same requirements of proof and use the same
analytical framework” as claims under Title VII of the Civil Rights Act of 1964. Shields v. Fort
James Corp., 305 F.3d 1280, 1282 (11th Cir. 2002).
25

Plaintiffs belong to a protected group or that the harassment alleged was
unwelcome. Rather, Defendant asserts some of the alleged harassment was not
based on race,9 and the alleged racial harassment was not sufficiently severe or
pervasive to affect their terms and conditions of employment. (Doc. 26 at 37-62).
Further, Defendant contends Plaintiffs cannot establish Tyco’s liability for the
alleged conduct because, except for Garrett, they never complained to the proper
officials. (Id. at 62-76). As for Garrett, Defendant argues he acted unreasonably
by not cooperating in the investigation and as a result his claim is barred as a
matter of law. (Id. at 76-80).
A. The record presents a genuine dispute of material facts as to
whether the harassment was severe and pervasive only for Watts,
Turner, and Garrett.
The “severe and pervasive” requirement is the “crucial” element in most
harassment claims. Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 582 (11th Cir.
2000), overruled on other grounds by Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006). “Requiring the plaintiff to prove that the harassment is severe
and pervasive ensures that Title VII does not become a mere general civility code.”
Id. (internal quotations and citation omitted). This requirement contains both an
objective and a subjective component. Harris v. Forklift Systems, Inc., 510 U.S.
17, 21-22 (1993); Mendoza v. Borden, 195 F.3d 1238, 1246 (11th Cir. 1999). To
9

Although argued by Defendant, the court does not discuss the element requiring the harassment
to be “based on race.” The court assumes, without deciding, this element is met.
26

be actionable, the behavior must result in both an environment “that a reasonable
person would find hostile or abusive” and an environment that the victim
“subjectively perceive[s] . . . to be abusive.” Harris, 510 U.S. at 22. In evaluating
the objective severity of the harassment, the court considers: (1) the frequency of
the conduct; (2) the severity of the conduct; (3) whether the conduct is physically
threatening or humiliating, or a mere offensive utterance; and (4) whether the
conduct unreasonably interferes with the employee’s job performance. Allen v.
Tyson Foods, 121 F.3d 642, 647 (11th Cir. 1997) (citation omitted).
The court looks to the totality of the circumstances instead of requiring proof
of each factor individually. Harris, 510 U.S. at 23. The “mere utterance of an . . .
epithet which engenders offensive feelings in an employee . . . does not sufficiently
affect the conditions of employment.” Harris, 510 U.S. at 21 (internal quotations
and citations omitted).

“Racial slurs spoken by co-workers ha[ve] to be so

‘commonplace, overt and denigrating that they create[ ] an atmosphere charged
with racial hostility.’” Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1521 (11th
Cir. 1995) (quoting EEOC v. Beverage Canners, Inc., 897 F.2d 1067, 1068 (11th
Cir. 1990)). Only when the workplace is “permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the
conditions of the employment and create an abusive working environment,” is the
law violated. Harris, 510 U.S. at 21 (internal quotations and citations omitted).
27

Before discussing the facts of each Plaintiff’s claim, the court finds the
Eleventh Circuit opinion in Adams v. Austal, U.S.A., LLC, 754 1240 (11th Cir.
2014), instructive. In Adams, the plaintiffs complained of pervasive racist conduct
at the defendant’s facility, including nooses being displayed, racist and sexually
laden graffiti drawn on the walls of bathrooms and boats, repeated use of racist
slurs and comments, an African American being kicked, and the wearing of
pervasive Confederate flag apparel by supervisors and co-workers.

Id. at 1246.

Of the thirteen appealing plaintiffs, the Eleventh Circuit found seven presented an
issue of fact as to severity or pervasiveness. Id. at 1251-57. The Court primarily
based its determination on the conduct to which the plaintiffs were actually
exposed and the extent to which it was directed at them. Id. For example, a
plaintiff who discovered two nooses, was the subject of a crude drawing, and
personally witnessed racist comments, physical abuse, and pervasive Confederate
flag apparel stated a sufficient claim.

Id. at 1251-52. The same was true of

plaintiffs who were the subject of racial slurs, discovered nooses hanging, or very
frequently observed the above-described conduct. Id. at 1252-54. In contrast, the
Court found plaintiffs who were not the subject of racist slurs and comments and
did not discover the nooses, but only heard about them, did not present an issue of
fact. Id. The Court made this finding despite the fact these plaintiffs observed

28

racist graffiti and Confederate flag apparel on a daily basis, heard racist slurs and
comments being made, and were aware of the nooses being hung. Id. at 1254-57.
The undersigned now turns to the individual allegations of harassment made
by each Plaintiff.

For the reasons explained below, Plaintiffs Foster, Hall, and

Mixon did not establish the harassment they experienced was sufficiently severe or
pervasive to alter the terms and conditions of their employment and create a
discriminatory abusive working environment. Plaintiffs Watts, Turner, and Garrett
have established the harassment they experienced was sufficiently severe and
pervasive, and therefore, these three Plaintiffs established a hostile work
environment claim for the purposes of summary judgment.
1. Thomas Foster10
The record does not present a genuine dispute of material fact concerning
Foster’s work environment.

Foster’s racial harassment claim consists of the

following: (1) the use of the “n” word one decade ago; (2) the use of “boy” twice
over a two-year period; (3) an ambiguous comment by an unidentified employee
about working black people to death; and (4) racial graffiti that was eight years
old when the complaint was filed.11 (Doc. 27-1 at 27-32). This racist language
10

The court will not generally recount each allegation made by each Plaintiff but refers to the
statement of facts in Section I.
11
Foster also testified about the lightning bolts on Shivers’ helmet, but he did not attribute them
to any racial animus until after he no longer worked for Tyson. (Doc. 27-1 at 34). The court
does not consider this as evidence of racial harassment since Foster was not aware of it during
his employment. Adams, 754 F.3d at 1250 (“A reasonable person in the plaintiff's position is not
29

and observation of racial graffiti are too sporadic and isolated to establish
harassment so objectively severe and pervasive as to alter the terms and conditions
of Foster’s employment. See McCann v. Tillman, 526 F.3d 1370, 1379 (11th Cir.
2008); Fortson v. Carlson, 618 F. App’x 601, 607 (11th Cir. 2015) (nine racially
derogatory comments over two-and-a-half years insufficient to support a hostile
work environment claim); Freeman v. City of Riverdale, 330 F. App’x 863, 866
(11th Cir. 2009) (eleven incidents of racially derogatory language over a thirteenyear period of employment insufficient to support a hostile work environment
claim); Gullatte v. Westpoint Stevens, Inc., 100 F. Supp. 2d 1315, 1322-23 (M.D.
Ala. 2000) (three racial epithets over an eight-year period of employment were
sporadic and not sufficiently severe or pervasive to constitute a hostile work
environment).

Additionally, the conduct was not physically threatening or

humiliating, and Foster did not present evidence the conduct interfered with his
job performance. Therefore, Foster’s allegations are insufficient to support a
hostile work environment claim, and summary judgment is due to be granted as to
Foster’s claim against Tyco.
2. Theresa Hall
The record also does not present a genuine dispute of material fact
concerning Hall’s work environment.

Like Foster, Hall’s contentions are too

one who knows what the plaintiff learned only after her employment ended or what discovery
later revealed.”).
30

sporadic and isolated to be considered severe and pervasive as a matter of law.
Hall’s allegations of a racially hostile work environment, including ten to fifteen
“y’all” comments12 over a two to three month period and hearing Garrett referred
to as “boy”13 (Doc. 27-2 at 23-25) over the span of one year of employment, do not
give rise to an actionable hostile work environment claim. See McCann, 526 F.3d
at 1379; Bowens v. Knox Kershaw, Inc., 2015 WL 9315611, at *8-9 (M.D. Ala.
Nov. 13, 2015) (eleven incidents over five months, including use of phrase “y’all
people” by supervisor, did not give rise to a hostile work environment claim); Kent
v. St. Joseph’s/Candler Hosp., 2010 WL 3282991, at *5-6 (S.D. Ga. July 6, 2010)
(use of the phrase “you people” was insufficient to give rise to a hostile work
environment claim); Lawrence v. Wal-Mart Stores, Inc., 236 F. Supp. 2d 1314,
1323 (M.D. Fla. 2002) (plaintiff failed to establish claim of racially hostile work
environment where comments, including phrase “you all,” were not severe or
pervasive).

Additionally, the conduct was not physically threatening or

humiliating, and Hall did not present evidence the conduct interfered with her job

12

There is no suggestion in Hall’s testimony the word “y’all” was being used as a racial insult.
See Ambus v. AutoZoners, LLC, 71 F. Supp. 3d 1280, 1300 (M.D. Ala. 2014) (“As to the
statements and conduct not expressly related to race, although words not directly related to race
may sometimes constitute racial harassment, there must be a surrounding context in which it is
clear that a comment is intended as a racial insult.”) (internal quotations omitted).
13
The impact of hearing a comment about someone else is necessarily below the impact of
comments directed to a plaintiff. See, e.g., Smith v. Northeastern Illinois Univ., 388 F.3d 559,
567 (7th Cir. 2004) (“impact of ‘second-hand harassment’ is obviously not as great as the impact
of harassment directed at the plaintiff”).
31

performance. Hall’s allegations are insufficient to support her claim as a matter of
law, and summary judgment is due to be granted as to Hall’s claim against Tyco.
3. Garron Mixon
The record also does not present a genuine dispute of material fact
concerning Mixon’s work environment. Mixon testified the following harassment
occurred during his three-month employment: (1) the use of the “n” word on two
occasions and the use of “black ass” on two occasions over the course of one week,
(2) two instances of racist graffiti which were both later removed, and (3) lightning
bolts on Shivers’ and Landers’ helmets. (Doc. 27-4 at 27-30, 36-37). However
offensive the conduct may be, the racial harassment must be severe and pervasive
and the work atmosphere “permeated with discriminatory intimidation, ridicule,
and insult.” Harris, 510 U.S. at 21. Mixon’s allegations fail to rise to this level.
Instead, his assertions are more akin to the allegations made by the plaintiffs whose
claims failed in Adams. Adams, 754 F.3d at 1254 (conduct was not sufficiently
severe or pervasive where an African-American plaintiff “saw his coworkers wear
the Confederate flag on a regular basis,” “saw racist graffiti in the men’s restroom
that he used on a daily basis,” “heard people say the slur ‘n*****,’ but only a ‘few
times,’” and heard about a noose being left in the breakroom, though he did not see
it himself); see also Barrow v. Georgia Pac. Corp., 144 F. App’x 54, 57 (11th Cir.
2005) (display of the rebel flag on tool boxes and hard hats, letters KKK appearing
32

on bathroom wall and block-saw console, use of the “n” word three times or more
a year, noose in employee’s locker, and other isolated racial slurs, while offensive,
were not so severe or pervasive as to alter conditions of employment). Although
the use of racial epithets is never appropriate, case law makes clear, that occasional
use, by itself, of even the most incendiary epithets fails to result in actionable
conduct. See, e.g., Harrington v. Disney Reg’l Entm’t, Inc., 276 F. App’x 863, 87577 (11th Cir. 2007) (although offensive, reference to plaintiff as “lazy n*****” and
occasional use of term “ghetto” did not amount to actionable conduct for racial
harassment claim); Fortson v. Columbia Farms Feed Mill, 34 F. Supp. 3d 1302,
1305-08 (M.D. Ga. 2014) (twelve racially derogatory comments in a seven month
span, over two years of employment, insufficient to support a hostile work
environment claim); Joseph v. Fla. Quality Truss Indus., Inc., 2006 WL 3519095,
at *10 (S.D. Fla. Dec. 6, 2006) (“the mere utterance of an ethnic or racial epithet
which engenders offensive feelings in an employee does not sufficiently affect the
conditions of employment to implicate Title VII.”).
Additionally, the conduct was not physically threatening or humiliating, and
Mixon did not present evidence the conduct interfered with his job performance.
The court does not condone the racist language or graffiti to which Mixon was
subjected, but taken as a whole, it does not rise to the level of conduct required to
establish the severe and pervasive prong by Eleventh Circuit precedent.
33

Therefore, summary judgment is due to be granted as to Mixon’s claim against
Tyco.
4. Rodney Watts
The record presents a genuine dispute of material facts that Watts’
workplace was objectively hostile. Watts’ testimony reflects harassment that was
more severe and frequent than alleged by Foster, Hall, and Mixon, and more akin
to the Adams plaintiffs who presented an issue of fact as to the severity or
pervasiveness of the harassment. Watts was employed for over four years at Tyco
and testified he heard “boy” and the “n” word “every day” and “constantly.”
(Doc. 27-5 at 17, 28). He testified his supervisor, Shivers, used the “n” word and
called him “boy” on a number of occasions. (Id. at 26-29). Other supervisors,
specifically Young and McLain, and plant manager Campbell called him and
other African American employees “boy.”

(Id. at 33-34; Doc. 27-6 at 1-2).

Additionally, Greg Terry the Human Resources manager referred to Watts as
“boy” on several occasions and had a Confederate flag tattooed on his right
forearm. (Doc. 27-5 at 30-31; Doc. 27-6 at 1). Watts also saw the “n” word
written on a bathroom wall and a rope tied into what he described as a noose
hanging in the back of the plant. (Doc. 27-5 at 37; Doc. 27-6 at 11). A noose is a
historically-significant symbol of race-based oppression and has consistently been
held as a severe form of racial harassment.
34

See Adams, 754 F.3d at 1253.

Because of the frequency with which he was called “boy” and the “n” word,
combined with his viewing of the racist graffiti and noose, a reasonable jury could
find his workplace was objectively hostile. Id. (plaintiff Reed heard racial slurs
every day, saw employees and supervisors wear Confederate shirts every day, and
saw racial graffiti every day); Mack v. ST Mobile Aero Eng’g, Inc., 195 F. App’x
829, 838 (11th Cir. 2006).
5. Darren Turner
The record presents a genuine dispute of material facts that Turner’s
workplace was objectively hostile. Turner’s testimony reflects harassment that
was more severe and frequent than expressed by Foster, Hall, and Mixon, and
more akin to the Adams plaintiffs who presented an issue of fact as to the severity
or pervasiveness of the harassment. Turner testified that during his four-year
employment, his supervisor, Shivers, called him “boy” every day and the “n” word
directly on two occasions and referred to him as the “n” word on another occasion.
(Doc. 27-2 at 26-33, 36). On one of the occasions where Shivers called Turner the
“n” word, Shivers got close to Turner’s face and slung the shield of Turner’s
helmet up, and Turner felt intimidated. (Id. at 26-27). Turner overheard Shivers
refer to Mixon as the “n” word. (Id. at 36). He also heard racial slurs, including
the terms “boy” and “black ass,” from other hourly employees. (Id. at 21-23).
Turner was present when someone asked about tying a hangman’s knot during a
35

meeting. (Id. at 23). Turner also saw racial graffiti one time in the bathroom, saw
the lightning bolts on Shivers’ helmet, and saw the word “master” and “slave”
written on electrical boxes. (Id. at 14-15, 26).
Turner’s allegations are sufficient to raise a question of fact as to the severity
and pervasiveness of the alleged harassment.

Turner testified he frequently

experienced racial harassment from both his supervisor and co-workers and saw
racist graffiti. Additionally, Turner felt physically intimidated during one of the
incidents where his supervisor called him the “n” word. A reasonable jury could
find his workplace was objectively hostile. See Adams, 754 F.3d at 1254.
6. Joseph Garrett
The record also presents a genuine dispute of material facts that Garrett’s
environment was objectively hostile. Like Watts and Turner, Garrett’s allegations
are analogous to the surviving Adams plaintiffs. Garrett experienced racial slurs,
including the “n” word, “boy,” “you people” and “your black ass,” from both
supervisors and co-workers, on a regular basis throughout his over three-year
employment with Tyco. (Doc. 27-10 at 33-35). Garrett saw what he described as
a noose and lightning bolts on Shivers’ helmet, and racial graffiti including
swastikas, the “n” word, “Go Back to Africa” and “KKK,” written in the bathroom.
(Id. at 12-14). He also saw the Confederate flag tattooed on the forearm of Terry,
the Human Resources manager. (Id. at 14). Taken as a whole, and considered in
36

context and not as isolated incidents, a reasonable jury could find his workplace
was objectively hostile. Id. at 1253 (every day plaintiff Reed heard racial slurs,
saw employees and supervisors wear Confederate shirts, and saw racial graffiti);
Mack, 195 F. App’x at 838.
In summary, Defendant is entitled to summary judgment on the harassment
claims asserted by Plaintiffs Foster, Hall, and Mixon because they did not establish
the harassment they experienced was sufficiently severe or pervasive to alter the
terms and conditions of their employment and create a discriminatory abusive
working environment. Plaintiffs Watts, Turner, and Garrett have established a
hostile work environment claim for the purposes of summary judgment. The
analysis of their claims, however, does not end with this determination. The court
next turns to Defendant’s affirmative defense established by the Supreme Court in
Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries,
Inc. v. Ellerth, 524 U.S. 742 (1998) (“Faragher-Ellerth defense”).
B. Tyco’s liability
Even if the harassment is severe and pervasive enough to result in a hostile
work environment, an employer can avoid liability for that hostile work
environment by maintaining an effective policy against harassment. Faragher,
524 U.S. at 807. In Faragher and Ellerth, the Supreme Court established an
affirmative defense when a plaintiff establishes a hostile work environment. The
37

Faragher-Ellerth defense has two elements: “(a) that the employer exercised
reasonable care to prevent and correct promptly any . . . harassing behavior, and
(b) that the plaintiff employee unreasonably failed to take advantage of any
preventative or corrective opportunities provided by the employer or to avoid harm
otherwise.” Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. Because it is an
affirmative defense, the employer bears the burden of establishing both elements.
Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1303 (11th Cir. 2007).
1. Tyco exercised reasonable care to prevent and promptly
correct any alleged harassing behavior.
There is not a uniform test for determining whether an employer’s policy
demonstrates it exercised reasonable care. The mere existence of a formal antiharassment policy does not satisfy this first prong.

See, e.g. Frederick v.

Sprint/United Mgmt. Co., 246 F.3d 1305, 1313 (11th Cir. 2001) (noting the
employer failed to establish that its policy contained reasonable complaint
procedures). An employer’s policy fulfills its “prevent harassment” obligation if
the employer promulgates a policy that is “comprehensive, well-known to
employees, vigorously enforced, and provides alternate avenues of redress[;] and
the policy must not be administered “in bad faith” or be otherwise “defective or
dysfunctional.” Dinkins v. Charoen Pokphand USA, Inc., 133 F. Supp. 2d 1237,
1251 (M.D.Ala. 2001) (citing Farley v. American Cast Iron Pipe Co., 115 F.3d
1548, 1554 (11th Cir. 1997) and Madray v. Publix Supermarkets, Inc., 208 F.3d
38

1290, 1298 (11th Cir. 2000)). “A policy is ‘defective’ if those responsible for its
enforcement lack training and knowledge sufficient to recognize, prevent and
correct workplace discrimination.” Id. Essentially then, an employer can establish
it exercised reasonable care to prevent harassment by showing it promulgated and
effectively disseminated a clear anti-harassment policy with complaint procedures
to its employees, as long as the complaint procedures “meet the minimum
requirements for the Faragher affirmative defense . . . [and do] not require . . . the
employee to complain to the offending supervisor or through the supervisor’s chain
of command and . . . provide[ ] multiple avenues of lodging a complaint to
assessable, designated representatives.” Madray, 208 F.3d at 1299; see also Olson
v. Lowe’s Home Ctrs. Inc., 130 F. App’x. 380, 389 (11th Cir. 2005) (finding
satisfaction of the first prong as the policies enabled employees to bypass harassing
supervisors and provided several different avenues for employees to report
harassment). This “requires . . . a clear and known policy against workplace
harassment . . . [including] permit[ting] employees to bypass supervisors and retain
some vestige of anonymity.” Bury v. Sky Chefs, 2011 WL 197383, at *6 (S.D. Fla.
Jan. 20, 2011).
Tyco’s anti-harassment policies prohibit all forms of harassment, provide
alternate avenues for employees to report any harassing conduct, and were
disseminated to employees, including all Plaintiffs, through orientation, training,
39

publication in both the employee handbook and the guide to ethical conduct, and
postings in the facility. Farley, 115 F.3d at 1553 (policy expressly prohibiting
sexual harassment, providing multiple avenues to report harassment, and was
disseminated and communicated to staff was reasonable). Plaintiffs do not identify
any aspect of Tyco’s written policies as defective. Defendant has proven each
Plaintiff received training on the handbook and the guide to ethical conduct, both
of which discuss the anti-harassment policy and the available avenues for
complaints by employees.
Some Plaintiffs argue they were never given a copy of the employee
handbook to take home. This argument is without merit. Every Plaintiff admitted
signing multiple forms acknowledging they were provided training on and receipt
of the handbook and guide to ethical conduct. Turner signed two such forms;
Foster, Hall, Watts, and Garrett signed three forms; and Mixon signed four forms.
Plaintiffs do not allege they fraudulently signed those forms or that any type of
fraud prevented them from reading the documents.14 Additionally, Plaintiffs do
not dispute being trained on the anti-harassment policy and the avenues to report
any perceived harassment.

14

Foster testified he had trouble reading but acknowledged a Human Resources representative
would have read the provisions to him if he had requested it, which he did not. (Doc. 27-1 at
11).
40

The undersigned, therefore, concludes Defendant has satisfied the first
element of the Faragher-Ellerth defense. The complaint procedures established by
Tyco's harassment policy meet the minimum requirements for the FaragherEllerth affirmative defense because the procedures did not require that the
employee complain to the offending supervisor or through the supervisor’s chain
of command and the procedures provided multiple avenues of lodging a complaint
to assessable, designated representatives.
2. Plaintiffs unreasonably failed to take advantage of the
corrective opportunities offered by Tyco.
Under the second step of the Faragher-Ellerth defense, the court must assess
whether Plaintiffs unreasonably failed to take advantage of the preventative or
corrective opportunities provided by Tyco to avoid harm. For an employee to
reasonably use the employer’s complaint procedures to report harassment, the
employee must (1) complain to an appropriate person designated to receive
complaints and (2) sufficiently articulate the complaint to put the employer on
notice of the harassment. Coates v. Sudor Brands, Inc., 164 F.3d 1361, 1364 (11th
Cir. 1999).

If an employer establishes procedures for employees to report

harassment and designates specific individuals to receive complaints, “then it is
incumbent upon the employee to utilize the procedural mechanisms established by

41

the company.”15

Madray, 208 F.3d at 1300.

By establishing the specific

procedures to take in reporting harassment, an employer has through its policy
“answered the question of when it would be deemed to have notice of the
harassment” and thereby become responsible for taking corrective action. Coates,
164 F.3d at 1364; see also Madray, 208 F.3d at 1300. Therefore, in most cases,
speaking informally to someone not designated by the policy to receive harassment
complaints is insufficient to put an employer on notice as a matter of law. Madray,
208 F.3d at 1300.
Concerning co-workers, an employer is liable for co-worker harassment if
the employer knew (actual notice) or should have known (constructive notice) of
the harassing conduct but failed to take prompt remedial action. See, e.g., Miller,
277 F.3d at 1278; Breda v. Wolf Camera and Video, 222 F.3d 886, 889 (11th Cir.
2000). After notice is established, a plaintiff must show the employer “failed to
take immediate and appropriate action.” Watson v. Blue Circle, Inc., 324 F.3d
1252, 1259 (11th Cir. 2003); see also Frederick, 246 F.3d at 1314; Minix v. Jeld–
Wen, Inc., 237 F. App’x 578, 583 (11th Cir. 2007).

15

The action must be

“[W]hile proof that an employee failed to fulfill the corresponding obligation of reasonable
care to avoid harm is not limited to showing an unreasonable failure to use any complaint
procedure provided by the employer, demonstration of such failure will normally suffice to
satisfy the employer’s burden under the second element of the [affirmative] defense.” Madray,
208 F.3d at 1301 (citations omitted).
42

“reasonably likely to prevent the misconduct from recurring.”

Kilgore v.

Thompson & Brock Mgt., Inc., 93 F.3d 752, 754 (11th Cir. 1996).
The court now turns to the individual Plaintiffs. For the reasons explained
below, the court concludes Defendant established the second element with regard
to each Plaintiff. Plaintiffs Foster, Hall, Mixon, Watts, and Turner failed to utilize
the reporting procedures established by Tyco. As such, these Plaintiffs failed to
put Tyco on notice as a matter of law. As to Garrett, the court concludes Garrett’s
decision not to fully report all his allegations of harassment or to otherwise
cooperate in Tyco’s investigation bars his claim as a matter of law.
a. Thomas Foster
Foster never made any complaints to anyone in Human Resources or Tyco
management about any alleged harassment during his employment.

Even his

EEOC charge, filed after his termination, did not mention any alleged harassment.
Additionally, Foster’s subjective conclusion that any complaint he made would
have been automatically considered meritless is insufficient to alleviate him of his
responsibility to report. See Walton v. Johnson and Johnson Servs., Inc., 347 F.3d
1272, 1290-91 (11th Cir. 2003) (“[s]ubjective fears of reprisal may exist in every
case, but . . . those fears, standing alone, do not excuse an employee’s failure to
report a supervisor’s harassment.”).

Therefore, Tyco established the second

43

element of the Faragher-Ellerth defense with regard to Foster because he failed to
use the reporting procedures established by Tyco. See Madray, 208 F.3d at 1300.
b. Theresa Hall
Hall never reported any of the alleged harassment to Tyco management or
Human Resources. Additionally, Hall’s EEOC charge, filed after her termination,
did not mention any alleged harassment. Hall’s testimony that she did not want to
be labeled a “snitch” does not excuse her failure to report. Conclusory allegations
or feared repercussions fail to overcome the unreasonableness of an employee’s
failure to report harassment. Id.; Nurse “BE” v. Columbia Palms W. Hosp. Ltd.
P’ship, 490 F.3d 1302, 1310-11 (11th Cir. 2007). Otherwise “[e]very employee
could say . . . she did not report the harassment earlier for fear of losing her job or
damaging her career prospects.” Baldwin, 480 F.3d at 1307.

Therefore, Tyco

established the second element of the Faragher-Ellerth defense with regard to Hall
because she failed to use the reporting procedures established by Tyco.

See

Madray, 208 F.3d at 1300.
c. Garron Mixon
Mixon never reported any of the alleged harassment to Tyco management or
Human Resources during his employment. Mixon’s EEOC charge, filed after his
termination, did not reference any of the alleged harassment. After being notified
of his termination, Mixon does allege that he told Greg Terry, “[W]ell you’ve got
44

some people in high positions that seem to think it’s okay to call somebody a lazy
n****** or lazy SOB or whatever and you don’t see anything wrong with that.”
(Id. at 31). This statement, however, does not meet Mixon’s obligations under
Faragher and Ellerth. An employee has the burden of proving he made a clear and
specific complaint to give the employer notice he is complaining about racial
harassment. Mixon’s comment, especially considering it was made in the context
of his termination, did not identify any specific speakers, equated “lazy n*****”
with “lazy SOB” and “whatever,” and did not adequately apprise Terry of a
problem requiring his attention. Mixon’s comment was too vague to be considered
an appropriate complaint to put Tyco on notice as a matter of law. See, e.g.,
Madray, 208 F.3d at 1300-01; Leeth v. Tyson Foods, Inc., 449 F. App’x 849, 853
(11th Cir. 2011) (plaintiff did not overcome Faragher defense where her
“complaints were very vague”); Odom v. Fred’s Stores of Tenn., Inc., 2013 WL
6498499, at *10 (M.D. Ga. Dec. 11, 2013) (Faragher defense established where
employee only made vague complaints and “did not articulate a complaint
sufficient to put the company on notice of sexual harassment”). Therefore, Tyco
established the second element of the Faragher-Ellerth defense with regard to
Mixon because he failed to use the reporting procedures established by Tyco. See
Madray, 208 F.3d at 1300.

45

d. Rodney Watts
Watts never reported any of the alleged harassment to Tyco management or
Human Resources during his employment. Watts’ EEOC charge, filed after his
termination, did not reference any of the alleged harassment. Watts testified,
however, he made a complaint by telephone from his cell phone to an unidentified
1-800 number in May of 2014.16 (Doc. 27-5 at 15-16). During the call, Watts
reported supervisors were “calling black men boys and the ‘n’ word. And [he]
didn’t approve with it.” (Id.).
This vague and self-serving testimony is insufficient to establish a proper
complaint as a matter of law. Tyco has a legal right to identify the proper officials
to whom complaints should be made, and Watts’ allegations are insufficient to put
the employer on notice of a complaint. See Madray, 208 F.3d at 1300 (“Publix
cannot be considered to have been placed on notice of [the] harassing behavior by
the plaintiff’s informal complaints to individuals not designated by Publix to
receive or process sexual harassment complaints.”). Tyco clearly identified the
paths available to Watts to complain, and his testimony does not establish he took
advantage of those procedures. See Fodor v. Eastern Shipbuilding Group, 2014
WL 1478845, at *6 (N.D. Fla. April 15, 2014) (court may reject a plaintiff’s

16

He got the number from someone at the plant but could not recall anything about the phone
call, i.e. the person’s name, location, or position, other than he called a 1-800 number and the
person sounded white. (Doc. 27-5 at 16).
46

claimed report of harassment to unidentified supervisors); Dixon v. Rave Motion
Pictures, Inc., 2006 WL 4483152, at *13 (M.D. Ala. Oct. 24, 2006) (plaintiff’s
claims she “made several complaints to the corporate offices about Mr. Bryant's
racially discriminatory actions at the theater” is devoid of specific facts which
would permit the court to determine whether the “several complaints to the
corporate offices” constituted protected activity). Therefore, Tyco established the
second element of the Faragher-Ellerth defense with regard to Watts because he
failed to use the reporting procedures established by Tyco. See Madray, 208 F.3d
at 1300.
e. Darren Turner
Tuner never reported any of the alleged harassment to Tyco management or
Human Resources during his employment. The court rejects Turner’s
characterization of his testimony in his brief regarding his alleged complaints to
Phillip Shivers, Patrick Young, and Greg Terry. Turner’s statement of “you’re
being a racist” to Shivers when he made an inappropriate remark is insufficient as
a matter of law to put Tyco on notice Turner was lodging an official complaint of
harassment. See Madray, 208 F.3d at 1300. Similarly, Turner’s comment to
Young he felt Young was being racist when he asked Turner to help pour iron for
an injured worker is insufficient. Id. Additionally, Turner’s complaint to Terry
about the gun policy does not serve as a complaint to give Tyco sufficient notice of
47

the existence of any racial harassment. See Coates, 164 F.3d at 1364-65 (vague or
ambiguous comments, even when made to a person designated to heard complaints
are insufficient to put an employer on notice).
Turner also testified he sent an email complaining of discrimination in late
2010 or early 2011 to an unidentified person he described as a “heavy-set white
guy” he saw on Tyco’s website.

(Doc. 27-7 at 11). Turner did not recall the

name, title, or role of the person he emailed and did not produce a copy of this
email during discovery. (Id.; Doc. 28 at 30). As with Watts, Turner’s speculative
and self-serving testimony does not establish he used the complaint procedure
identified by Tyco. See, Fodor, 2014 WL 1478845, at *6; Dixon, 2006 WL
4483152, at *13. Tyco clearly identified the paths available to Turner to complain,
and his testimony does not establish he took advantage of those procedures.
Therefore, Tyco established the second element of the Faragher-Ellerth defense
with regard to Turner because he failed to use the reporting procedures established
by Tyco. See Madray, 208 F.3d at 1300.
f. Joseph Garrett
Garrett is the only Plaintiff who reported harassment to Tyco. Garrett made
a number of complaints to Greg Terry in 2013, two of which involved alleged
harassment. Garrett complained in early 2013 about Shaun Griffin using the “n”
word. (Id. at 23-24, 36). Terry later told Garrett he addressed the issue with
48

Griffin and to let him know if he had any further problems. (Id. at 24). Garrett had
no further issues with Griffin. (Id.). Additionally, Garrett complained to Terry
about maintenance supervisor Kimbrell calling him a “boy” after the drag racing
incident in July 2013. (Id.).

Although Terry did not find any corroborating

evidence, he verbally counseled the employee. (Doc. 27-13 at 6). Garrett testified
he had no further problems with Kimbrell.
Regarding these complaints, Tyco’s actions constitute immediate and
appropriate corrective action, and therefore, Tyco cannot be held liable for the
alleged conduct. After Garrett reported the inappropriate conduct in each instance,
Terry spoke with the people involved and Garrett either did not have any further
problems with the people involved, or did not report any further problems. Such
measures are sufficient as a matter of law. See Faragher, 111 F.3d at 1535;
Fleming v. Boeing Co., 120 F.3d 242, 246-47 (11th Cir. 1997) (talking to the
harasser and telling the complainant to report any further problems was, as an
initial measure, enough to constitute “immediate and appropriate corrective
action”).
The other time Garrett complained of racial harassment was through his
February 2014 EEOC charge. (Doc. 27-10 at 29). Tyco assigned Dwendy Jones to
investigate the allegations contained in Garrett’s EEOC charge. (Doc. 27-9 at 19).
Garrett met with Dwendy Jones on March 6, 2014, and reported nine incidents of
49

alleged harassment. (Id. at 27; Doc. 27-10 at 33-34). Jones offered Garrett the
chance to provide a written statement, but Garrett refused and told Jones to use the
allegations in his EEOC charge. (Doc. 27-13 at 33). Additionally, Jones gave
Garrett her cell phone number if he needed to add anything to his complaint, and
Garrett never called her. (Id.; Doc. 27-9 at 33-34).
During their meeting, Jones asked Garrett to tell her about each and every
incident of harassment. (Doc. 27-9 at 34). Garrett admits, however, he did not
inform Jones about all the harassment he experienced. He only told Jones about
nine of the alleged twenty-four incidents he recalled in preparation for his
deposition. (Id. at 27; Doc. 27-10 at 33-34). Garrett contends he could not
remember some of the incidents he recalled three years later because he did not
know when Jones was coming to talk to him about his EEOC charge and he did not
have time to prepare and think about it. (Doc. 34 at 77-78). Additionally, Garrett
contends he withheld information from Jones because she was in an “adversarial
position to Garrett” because two of Garrett’s co-workers made complaints against
him. (Id. at 78).
Garrett’s arguments do not excuse his failure to inform Tyco and fully
cooperate in the investigation.

An employee’s failure to fulfill his reporting

obligations can include “not taking advantage of any reasonable corrective
measures the employer offers after the harassment is reported.”
50

Baldwin, 480

F.3d at 1306.

An employee is obligated to take “full advantage” of the

preventative/corrective measures. Id. at 1307. This obligation does not end by
simply making an allegation of harassment. The plaintiff must also cooperate in
the investigation of the complaint. Id. at 1306.
Garrett’s actions during the investigation of his EEOC charge are fatal to his
claim. Taking all Garrett’s allegations as true, Garrett failed to adequately apprise
Tyco of the dimensions of the problem. Where an employee unreasonably decides
to withhold information from the investigator, his decision is unreasonable and
justifies imposition of the Faragher defense.

Baldwin, 480 F.3d at 1307-08;

Coates, 164 F.3d at 1365. Garrett’s explanations as to why he did not report all the
alleged harassment are unpersuasive. His argument regarding lack of time to
prepare before speaking with Jones does not excuse his failure to report all the
alleged harassment. Jones gave Garrett her cell phone number and told him to
contact her for any reason.

Even though he had her phone number and he

remembered some additional unreported incidents, Garrett chose not to report the
additional alleged harassment. That choice reflects a decision by Garrett to not
fully participate in the investigation.
Additionally, the court rejects Garrett’s argument regarding the complaints
against him as an excuse for his failure to fully inform Jones of all the alleged
harassment. First, Jones met with Garrett in March 2014. The complaints against
51

Garrett were not made until August 2014. (Doc. 27-3 at 22-24). Jones, therefore,
could not have had any knowledge of the future complaints when she met with
Garrett initially. Moreover, his failure to supplement Jones when he recalled other
alleged harassment is not excused even after the women made their complaints
against Garrett. A generalized fear of retaliation is not sufficient to explain a long
delay in reporting harassment. Walton, 347 F.3d at 1290-91.
Garrett’s decision not to fully inform Jones of all the alleged harassment and
his decision not to fully participate and cooperate in Tyco’s investigation bar his
claim as a matter of law. Baldwin, 480 F.3d at 1307-08 (plaintiff’s overall refusal
to cooperate in “the company’s reasonable attempt to solve the problem” was
sufficient to establish the Faragher-Ellerth defense). The “primary objective” of
the discrimination laws “is not to provide redress but to avoid harm.” Faragher,
524 U.S. at 806. To promote this objective, the discrimination laws, and the
Ellerth/Faragher defense in particular, are premised on a cooperative framework
wherein the employee reports harassment and the employer remedies the improper
conduct. “[T]he law against . . . harassment is not self-enforcing and an employer
cannot be expected to correct harassment unless the employee makes a concerted
effort to inform the employer that a problem exists.” Shaw v. AutoZone, Inc., 180
F.3d 806, 813 (7th Cir. 1999) (internal quotation marks omitted).

The court

understands raising problems regarding harassment can be uncomfortable for the
52

employee, but if courts were to allow an employee’s subjective, ungrounded fears
of unpleasantness or retaliation to alleviate an employee’s reporting requirement,
courts would “completely undermine Title VII’s basic policy ‘of encouraging
forethought by employers and saving action by objecting employees.’” Barrett v.
Applied Radiant Energy Corp., 240 F.3d 262, 268 (4th Cir. 2001) (quoting
Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 764).
Instead, this case provides a good example of why courts should encourage
action by employees, given when Garrett did accurately inform Tyco about the full
extent of a problem, the harassment stopped. Had Tyco been fully informed about
the alleged scope of the harassment, there is a chance the primary goal of
preventing harm would have been served. By not fully informing Tyco regarding
the full scope of the alleged harassment, Garrett thwarted that goal. As a result, his
claim is barred as a matter of law.
IV.

CONCLUSION
In summary, the court concludes Thomas Foster, Theresa Hall, and Garron

Mixon’s claims fail because the harassment alleged was not severe or pervasive as
a matter of law. In the alternative, their claims fail because they unreasonably
failed to take advantage of the corrective opportunities offered by Tyco. Although
the court concludes Rodney Watts, Darren Turner, and Joseph Garrett established a
claim of hostile work environment, their claims fail because they unreasonably
53

failed to take advantage of the corrective opportunities offered by Tyco. As such,
Defendant Tyco Fire Products, LP is entitled to judgment as a matter of law on all
the claims asserted by Plaintiffs. Defendant’s motion for summary judgment (Doc.
26) is due to be granted in full. A separate order will be entered.
DONE this 14th day of March, 2018.

______________________________
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE

54