Adams et al v. Austal, U.S.A., L.L.C.

Filing 398

ORDER re 177 201 216 Defendant's Motion for Summary Judgment. It is ORDERED that Austals motion for summary judgment is DENIED as to Carters hostile work environment claim; GRANTED as to Carters failure to adequately train claim; GRANTED a s to Carters disparate pay claims; GRANTED in part and DENIED in part as to Carters disparate promotion claims, as detailed herein; and GRANTED as to Carters retaliation claim. Carters punitive damages request is CARRIED TO TRIAL, as further set out. Signed by Judge Kristi K. DuBose on 7/27/2011. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
FREDERICK CARTER, et al.,
Plaintiffs,
v.
AUSTAL, U.S.A., L.L.C.,
Defendant.

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)
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)

CIVIL ACTION 08-00155-KD-N

ORDER
This matter is before the Court on Defendant’s motion for summary judgment (Docs.
177, 201, 216), Plaintiff’s Opposition (Doc. 312), and Defendants’ Reply (348); and Defendant’s
Motion to Strike (Doc. 347) and Plaintiff’s opposition thereto (Doc. 353).
I.

Factual Background
On March 20, 2008, multiple Plaintiffs initiated this action against Austal for legal and

equitable relief to redress unlawful discrimination and harassment on the basis of race.1 (Doc.
1).

Plaintiff Frederick Carter (“Carter”) asserts claims for hostile work environment and

disparate treatment (promotion discrimination) based on race, in violation of 42 U.S.C. § 1981
and Title VII. (Doc. 37 at 59-64).2

1

While initiated as a purported class action, this is no longer a class action case. (Doc. 293).
Additionally, some of the Plaintiffs allege gender and disability discrimination in addition to asserting
Title VII and Section 1981 claims.
2

Originally, Carter alleged a separate claim for retaliation, (Doc. 37 at 61, 63-64 at ¶¶284, 294,
295, 297, 298-299). Carter also alleged failure to adequately train. (Id. at 64 at ¶302). Carter now
represents that he “is pursuing claims against Austal for only hostile work environment and
discrimination on the basis of race in regards to pay and promotions” under Section 1981 and Title VII.
(Doc. 312 at 2 (emphasis added)). Accordingly, the Court construes Carter’s intentional exclusion of his
retaliation and failure to adequately train claims, as concessions of these claims. Thus, it is ORDERED
that Austal’s motion for summary judgment as to Carter’s retaliation and training claims, is GRANTED.
Additionally, while Austal contends that Carter abandoned his disparate treatment claims concerning

(Continued)
1

A.

Austal

Defendant Austal USA (“Austal”) is an Australian shipbuilding company dedicated to the
design and construction of customized aluminum commercial and military vessels, located in
Mobile, Alabama.

(Doc. 201 at 2; Doc. 283-48 at 2-3 (Austal’s 3/7/07 EEOC Position

Statement)). The Operations Division has four (4) major Departments (Aluminum (divided into
Fabrication and Components), Electrical, Engineering, and Fit Out (divided into HVAC,
Insulation and Fit Out)). (Doc. 283-48 at 3-4). The Operations Division includes several other
departments such as Purchasing; the Warehouse Department falls under the Purchasing
Department. (Id.)
B.

Carter’s Employment

Frederick Carter was hired to work for Austal in late January 2003, and began working

evaluations and discipline (Doc. 348 at 2), Carter did not allege such claims in the Third Amended
Complaint. As such, Austal’s motion, to the extent it seeks summary judgment on these claims, is
MOOT. Moreover, while Carter initially alleged disparate impact claims against Austal, said claims
have been dismissed from this litigation. (Doc. 366).
Further, in his opposition brief Carter alleges a new disparate pay claim (higher starting hourly
wages) (Doc. 312 at 8). Carter did not allege such a claim in the Third Amended Complaint. As such,
Carter cannot assert this new disparate pay claim on summary judgment.
Finally, while Carter did allege a disparate pay claim for pay cuts in conjunction with transfers to
departments (Doc. 37 at 62 at ¶291) -- he “was told that if he wanted to advance and change departments
he would have to take a pay cut…white employees Chris Knight, Rachel Sullivan, Nathaniel Freeman,
and Derrick Harvard all changed departments without taking pay cuts[]” --- Carter has abandoned this
claim on summary judgment. Notably, Carter specifies in his opposition brief that he is pursuing a claim
for disparate treatment in regard to pay citing paragraphs 286 and 290 and his “statement of facts above”
(excluding the class action paragraphs cited) of the Third Amended Complaint. (Doc. 312 at 36). Neither
cited paragraphs nor his statement of facts discuss pay cuts tied to transfers. Carter also does not discuss
this claim in his opposition brief. Thus, it is ORDERED that Austal’s motion for summary judgment as
to Carter’s disparate pay claim under both Title VII and Section 1981 for pay cuts tied to department
transfers, is GRANTED.

2

for Austal as a Storekeeper (clerk) in the Warehouse Department at the rate of $9/hour. (Doc.
216-1 (Dep. Carter at 75-76); Doc. 216-2 at 7 (Decltn. Lindley); (Doc. 295 at 7 (Exhibit 105Sealed); Doc. 216-1 at 48). Carter was “on probation” for the first 12 weeks. (Doc. 285-8 (Dep.
Carter at 76)). While employed at Austal, Carter received pay raises dated March 10, 2003 (from
$9/hour to $11.50/hour “as per our original agreement with Mr. Carter we will increase pay on a
performance basis for the 1st 90 days of employment”); April 28, 2003 (from $11.50/hour to
$12/hour); July 21, 2003 (from $12/hour to $13.50/hour); October 13, 2003 (from $13.50/hour to
$15.50 hour as “temporary raise while performing duties as warehouse/supervisor only. This
raise may be rescinded after”); August 19, 2005 (from $14.50/hour to $15/hour); May 22, 2006
(from $15/hour to $15.50/hour); January 3, 2007 (from $15.50/hour to $16/hour); March 21,
2007 (a raise to $17/hour in conjunction with being given the management position of Shipping
and Receiving Supervisor, “performance review will be conducted after 90 day probationary
period”); July 2, 2007 (from $17/hour to $18.50/hour); November 5, 2007 (from $18.50/hour to
$19/hour, “no back pay”); February 11, 2008 (from $19/hour to $20/hour); and August 30, 2008
(from $20/hour to $22/hour). (Doc. 216-1 at 50-53, 55-57, 59, 61-62; Doc. 295 at 7 (Exhibit
105-Sealed)). Notably, on October 13, 2003, Carter was temporarily made Warehouse
Supervisor; and effective March 26, 2007, Carter was promoted to Shipping and Receiving
Supervisor.3 (Doc. 216-1 at 52, 59); Doc. 216-2 at 7 (Decltn. Lindley); Doc. 285-8 (Dep. Carter
at 101-102)). On October 22, 2008, Carter was terminated for “insufficient performance of
duties.” (Doc. 216-1 (Dep. Carter at 11); Doc. 216-2 at 7 (Decltn. Lindley); Doc. 216-3 at 2).

3

Carter received this promotion with a pay raise after his EEOC Charge was filed. (Doc. 285-5
(Dep. Carter at 101-102)).

3

II.

Standard of Review
“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.@ FED.
R. CIV. P. 56(a) (Dec. 2010).

The recently amended Rule 56(c) governs Procedures, and

provides as follows:
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party
may object that the material cited to support or dispute a fact cannot be presented
in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it
may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.
FED.R.CIV.P. Rule 56(c) (Dec. 2010).
Defendant, as the party seeking summary judgment, bears the Ainitial responsibility of
informing the district court of the basis for its motion, and identifying those portions of >the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any,= which it believes demonstrate the absence of a genuine issue of material fact.@
4

Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). If the nonmoving party fails to make Aa sufficient showing
on an essential element of her case with respect to which she has the burden of proof,@ the
moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. AIn reviewing whether
the nonmoving party has met its burden, the court must stop short of weighing the evidence and
making credibility determinations of the truth of the matter. Instead, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.@ Tipton v.
Bergrohr GMBH-Siegen, 965 F.2d 994, 998-999 (11th Cir. 1992), cert. den., 507 U.S. 911 (1993)
(internal citations and quotations omitted).
III.

Timeliness of Claims
A.

Title VII

A plaintiff may not sue under Title VII unless he first exhausts administrative remedies
by filing a timely charge of discrimination with the appropriate agency. See, e.g., Wilkerson v.
Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001). “In a non-deferral state such as Alabama,
the deadline for filing is 180 days after the alleged discriminatory act.” Carter v. University of
South Alabama Children's & Women's Hosp., 510 F. Supp. 2d 596, 606 (S.D. Ala. 2007). See
also Tipp v. AmSouth Bank, 76 F. Supp. 2d 1315, 1327 (S.D. Ala. 1998). “If the victim of an
employer's unlawful employment practice does not file a timely complaint, the unlawful practice
ceases to have legal significance, and the employer is entitled to treat the unlawful practice as if
it were lawful.” City of Hialeah, Fla. v. Rojas, 311 F.3d 1096, 1102 (11th Cir. 2002). See also
Sheffield v. United Parcel Service, Inc., 2010 WL 4721613, *2 (11th Cir. Nov. 22, 2010); Jordan
v. City of Montgomery, 2008 WL 2529573, *1 (11th Cir. Jun. 26, 2008). A failure to file a
5

timely charge with the EEOC results in a bar of the claims contained in the untimely charge. Id.
Carter started working at Austal in January 2003, and he signed his EEOC Charge on
November 13, 2006 and it was “received” on November 20, 2006. (Doc. 216-3 at 14-16).
Calculating from the November 20, 2006 date, Austal contends that only those “discrete
discriminatory acts” occurring between May 24, 2006 and November 20, 2006 – the 180 days
prior to November 20, 2006 -- are timely. Austal asserts that “[a]ll alleged acts occurring
between Carter’s hire date of January 2003, and the beginning of the statutory period date of
May 24, 2006, are time-barred under Title VII. Based on the foregoing, Carter’s claim that he
was overlooked for the warehouse coordinator job in 2004/2005 is time barred.” (Doc. 201 at 8).
Carter contends that Austal’s interpretation is incorrect and contrary to well established
law, as although many acts upon which plaintiff’s Title VII claims rely may have occurred
outside the 180 filing period, “they are part of the same actionable hostile environment claim.”
(Doc. 312 at 14 (citing McKenzie v. Citation Corp., LLC, 2007 WL 1424555 (S.D. Ala. 2007)).
Carter is correct as it relates to his hostile work environment claim. The U.S. Supreme Court has
clarified that there are different standards for claims involving “discrete acts” versus “hostile
environment” allegations. See generally National R.R. Passenger Corp. v. Morgan, 536 U.S. 101
(2002). Under the continuing violation doctrine, a plaintiff's charge of discrimination regarding
a hostile work environment is considered timely if “an act contributing to the claim occurs within
the filing period,” even if “some of the component acts of the hostile work environment fall
outside the statutory time period.” Id. at 117. As explained in Smiley v. Alabama Dept. of
Transp., Slip Copy, 2011 WL 1188506, *5 (M.D. Ala. Mar. 30, 2011):
Unlike claims involving discrete discriminatory acts, hostile environment claims
may be litigated so long as at least one of the events contributing to the hostile
6

environment was presented to the EEOC in a Charge of Discrimination in a
timely fashion. Indeed, in Morgan, the United States Supreme Court held that
“consideration of the entire scope of a hostile work environment claim, including
behavior alleged outside the statutory time period, is permissible for the purposes
of assessing liability, so long as an act contributing to that hostile environment
takes place within the statutory time period.” Morgan, 536 U.S. at 106.
Carter’s EEOC Charge alleges not just “at least one of the events” but a variety of
“events contributing to the hostile work environment” -- sufficient to have placed Austal on
notice that such a claim (and various incidents tied to same) exists in the litigation so that Austal
could have investigated the details during discovery. Indeed, on his EEOC Charge, Carter
checked the “Continuing Action” Box. (Doc. 216-3 at 14). Accordingly, Carter’s hostile work
environment claim is not time barred.
Concerning failure to promote under Title VII and relevant to Austal’s time-barred
argument, Carter contends that throughout his employment he was continuously denied
promotional opportunities including the positions of Warehouse Supervisor (once) and
Warehouse Coordinator (three times). Based on the record, it appears that the Warehouse
Supervisor position at issue occurred in October 2004. At that time, Carter was offered the
Warehouse Supervisor position at a salary of $32,000/year. Carter did not accept this specific
promotion which was offered to him because it did not pay a certain salary.4 In any event
because the situation occurred before May 24, 2006, the claim is time barred. Accordingly,
Austal’s motion, as to the October 2004 Warehouse Supervisor promotion claim under Title VII,

4

(Doc. 285-8 (Dep. Carter at 83)). Carter alleges that he declined a promotion to Warehouse
Supervisor because he was only offered $32,000/year (meaning he would be making less per
hour/annually than he was as a general warehouse employee (Carter testified that after overtime was
applied he made around $38,000/year)). (Id. (Dep. Carter 83-88). Carter would have accepted the
position if he had been offered more than $32,000/annually. (Id. (Dep. Carter 85-88)).

7

is GRANTED.
Concerning the promotions to Warehouse Coordinator, Carter alleges that he was denied
a promotion to this position not once, but three (3) times, in June 2005, Summer 2006, and in
2007. Austal contends that “Carter’s claim that he was overlooked for the warehouse coordinator
job in 2004/2005 is time barred[]” under Title VII because it occurred before May 24, 2006.
However, Carter alleges that the promotions were not separate discrete acts but a continuous
denial of the same promotion (i.e., a continuing violation). In Morgan, the U.S. Supreme Court
drew a distinction between discrete acts of discrimination and hostile work environment claims,
noting that “discrete acts such as…failure to promote….are easy to identify. Each incident of
discrimination and each retaliatory adverse employment decision constitutes a separate
actionable unlawful employment practice.” Morgan, 536 U.S. at 114. Courts in the Eleventh
Circuit have noted that while Morgan was decided within the context of the requisite period for
filing EEOC charges, “it is also instructive on the scope of the concept of a ‘continuing
violation’….” See, e.g., Marshall v. Daleville City Bd. of Educ., 2006 WL 2056581, *3 (M.D.
Ala. Jul. 24, 2006). Additionally, the Eleventh Circuit has held that the denial of a promotion is
one time violation, the present consequences of which only are felt at the present time, and not a
continuing violation. Id. (citing Roberts v. Gadsden Memorial Hosp., 835 F.2d 793 (11th Cir.
1988), modified, 850 F.2d 1549 (11th Cir. 1988) and Price v. M & H Valve Co., 2006 WL
897231, *7 (11th Cir. Apr. 7, 2006) (unpublished)). Bearing this in mind, the Court finds that
Carter’s claim of failure to promote in June 2005 is time barred. Accordingly, Austal’s motion,
as to the June 2005 Warehouse Coordinator promotion claim under Title VII, is GRANTED.
Additionally, to the extent Austal’s motion (which asserts that “all acts” before May 24,

8

2006 are time barred under Title VII) can be construed to include the “Summer 2006” promotion
claim to Warehouse Coordinator, Austal’s motion is DENIED because Austal has not presented
any evidence of record as to what month the “Summer 2006” promotion occurred (i.e., whether
before or after May 24, 2006).
B.

Section 1981
Austal makes no time-barred argument in its motion for summary judgment concerning

Section 1981. Rather, Austal asserts these (and other) new arguments in its Reply. (Doc. 348 at
2-4).

The Court will not consider these “new” claims because Austal cannot assert new

allegations or arguments raised for the first time on Reply. As set forth recently by this Court in
New Hampshire Ins. Co. v. Wiregrass Const. Co., Slip Copy, 2011 WL 206191, *2 at note 2
(S.D. Ala. Jan. 20, 2011):
See Park City Water Authority v. North Fork Apartments, L.P., 2009 WL
4898354 at *1 n. 2 (S.D.Ala.2009) (citing cases from over 40 districts applying
the rule in 2009 alone). The Eleventh Circuit follows a similar rule. E.g., Herring
v. Secretary, Department of Corrections, 397 F.3d 1338, 1342 (11th Cir.2005)
(“As we have repeatedly admonished, arguments raised for the first time in a
reply brief are not properly before a reviewing court.”) (internal quotes omitted).
The Court has identified some of the reasons supporting the rule. “In order to
avoid a scenario in which endless sur-reply briefs are filed, or the Court is forced
to perform a litigant's research for it on a key legal issue because that party has
not had an opportunity to be heard, or a movant is incentivized to save his best
arguments for his reply brief so as to secure a tactical advantage based on the
nonmovant's lack of opportunity to rebut them, this Court does not consider
arguments raised for the first time in a reply brief.” Hardy v. Jim Walter Homes,
Inc., 2008 WL 906455 at *8 (S.D.Ala.2008).
In sum, because Austal failed to raise these arguments in its motion for summary
judgment, they will not be considered. See also e.g., Abrams v. Ciba Specialty Chemicals Corp.,
663 F. Supp. 2d 1220, 1232 at note 16 (S.D. Ala. 2009) (providing that “new arguments are
impermissible in reply briefs”); Evans v. Infirmary Health Services, Inc., 634 F. Supp. 2d 1276,
9

1285 at note 14 (S.D. Ala. 2009) (instructing that “this Court's general practice is not to consider
new arguments raised in a reply brief”).
IV.

Section 1981/Title VII – Hostile Work Environment (Race)
Racial harassment is actionable under Section 1981 or Title VII where the conduct is

sufficiently severe or pervasive to alter the conditions of employment and create an abusive
working environment. See, e.g., Freeman v. City of Riverdale, 330 Fed. Appx. 863, 865 (11th
Cir. 2009).5 To establish a prima facie case of hostile work environment and/or racial harassment
under Section 1981 or Title VII, the plaintiff must prove that: 1) he belongs to a protected group;
2) he 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 such environment under a theory of
vicarious or direct liability. See, e.g., Reeves v. DSI Sec. Servs., Inc., 395 Fed. Appx. 544, 545546 (11th Cir. 2010); McCann v. Tillman, 526 F.3d 1370, 1378 (11th Cir. 2008); Miller v.
Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). See also e.g., Mendoza v.
Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999).
Austal contends that: 1) Carter’s evidence of sporadic and isolated incidents of racially
hostile comments, conduct and graffiti during the time he was employed do not meet the severe
or pervasive threshold; 2) Carter makes no allegations and presents no evidence that the
allegedly hostile environment unreasonably interfered with his ability to work on a day-to-day

5

This is an unpublished decision and is persuasive, but not binding, authority pursuant to
Eleventh Circuit Rule 36-2. The Court notes this same rule applies to other Fed. Appx. cases cited herein.

10

basis; 3) Austal maintained a policy establishing how an employee should report discriminatory
conduct, but Carter failed to report certain conduct; and 4) Austal took reasonable preventative
and corrective/remedial measures to prevent a hostile work environment.
To be actionable as severe or pervasive, the harassment “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.” Miller, 277 F.3d at 1276 (internal citation and
quotation marks omitted). In other words, the severe or pervasive element has an objective and
subjective component. McCann, 526 F.3d at 1378. To determine the objective severity of the
harassment, courts look at the totality of the circumstances and consider: 1) the frequency of the
discriminatory 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 an employee's job performance. Reeves, 395 Fed. Appx. at 546.
See also Faragher v. City of Boca Raton, 524 U.S. 775, 787-788 (1998); Allen v. Tyson Foods,
121 F.3d 642, 647 (11th Cir. 1997) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).
“The conduct is considered cumulatively instead of in isolation.” Reeves, 395 Fed. Appx. at
546.
Upon review of the record the Court finds there is sufficient evidence, if believed by a
jury, that Carter subjectively perceived his work environment to be racially hostile. The Court
also finds sufficient evidence that a jury could find that Carter’s perception was objectively
reasonable. Thus, the Court turns to element five: employer liability.

11

This last element of Carter’s proof requires a basis for employer liability. In Faragher v.
City of Boca Raton, 524 U.S. 775 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742
(1998), the U.S. Supreme Court held that employer liability is automatic when the supervisor’s
harassment culminates in a “tangible employment action, such as discharge, demotion, or
undesirable reassignment.” Faragher, 524 U.S. at 807, 808; Ellerth, 524 U.S. at 762, 763.
Where no such action has occurred, “[a]n employer is subject to vicarious liability to a
victimized employee for an actionable hostile environment created by a supervisor with
immediate (or successively higher) authority over the employee.” Faragher, 524 U.S. at 807;
Ellerth, 524 U.S. at 745. An employer may avoid vicarious liability by raising as an affirmative
defense that it: 1) exercised reasonable care to prevent and correct promptly any harassing
behavior, and 2) the employee unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to avoid harm otherwise. Faragher, 524
U.S. at 807, 809; Miller, 277 F.3d at 1278. This is known as the Faragher defense. “Both
elements must be satisfied…and the defendant bears the burden of proof on both elements.”
Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1313 (11th Cir. 2001) (citations omitted).
Moreover, Austal is directly liable for co-worker harassment if Austal 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 & Video,
222 F.3d 886, 889 (11th Cir. 2000). Once notice is established, a plaintiff must show that the
employer “failed to take immediate and appropriate corrective action.” Watson v. Blue Circle,
Inc., 324 F.3d 1252, 1261 (11th Cir. 2003). See also Frederick, 246 F.3d at 1314; Minix v. JeldWen, Inc., 237 Fed. Appx. 578 (11th Cir. 2007).

12

The prompt remedial action must be

“reasonably likely to prevent the misconduct from recurring.”

See, e.g., Baldwin v. Blue

Cross/Blue Shield of Ala., 480 F.3d 1287, 1305 (11th Cir. 2007); Kilgore v. Thompson & Brock
Mgt., Inc., 93 F.3d 752, 754 (11th Cir. 1996); Tipp v. AmSouth Bank, 76 F. Supp. 2d 1315, 1333
(S.D. Ala. 1998). Specifically, the employer’s action must be “effective action” and “must be
‘reasonably calculated to end the harassment,’ and the promptness and adequacy of the
employer’s response must be evaluated on a case-by-case basis. Of special importance is
whether the…harassment ended after the remedial action was taken.” Munn v. Mayor and
Aldermen of City of Savannah, Ga., 906 F. Supp. 1577, 1583 (S.D. Ga. 1995). See also Saville v.
Houston Cty. Healthcare Auth., 852 F. Supp. 1512, 1528 (M.D. Ala. 1994).
Throughout Carter’s employment (January 2003-October 2008) Austal maintained in its
Hourly Employee Handbooks a Non-Discrimination and Anti-Harassment policy which all
employees are required to read and sign. (Doc. 216-2 at 3 (Decltn. Lindley); Doc. 285-2 (Dep.
Browning at 56-57); Doc. 283-55 (Austal’s April 2004-Issue D Hourly Employee Orientation
Booklet); Doc. 283-56 (Austal’s November 2005-Issue E Hourly Employee Orientation
Booklet); Doc. 216-2 at 15-66 (Austal’s April 2006-Issue F Hourly Employee Orientation
Booklet and Austal’s November 2007-Issue A Employee Handbook)). During his employment,
Carter received one (1) manual6 and read and fully understood its contents. (Doc. 285-8 (Dep.
Carter at 107)).

6

There is no evidence of record indicating which of the Handbooks Carter received and signed
during his employment. Presumably, given Lindley’s Declaration that each employee received a
handbook and signed same during orientation right after being hired, and as Carter was hired in January
2003, he would have signed a 2003 version. However, as neither party has submitted a 2003 Hourly
Employee Handbook on summary judgment, the Court presumes that the Handbook was the same as the
April 2004 Handbook.

13

Nevertheless, Austal’s April 2004, November 2005, April 2006 and November 2007 antiharassment policies inform employees about the grievance procedure for reporting incidents of
discrimination and harassment. (Doc. 283-55 at 13-14; Doc. 283-56 at 25-26; Doc. 216-2 at 3637, 50-51). The April 2004, November 2005 and April 2006 policies provide, in relevant part: 1)
employees are “urged to inform” their Supervisor of suspected violations of the policy, and the
Supervisors are then required to report same to the Department Manager and 2) if for any reason
the employee does not feel comfortable discussing the situation with his or her immediate
Supervisor, he or she should report the matter to the Departmental Manager. (Doc. 283-55 at 13;
Doc. 283-56 at 25; Doc. 216-2 at 37). The Revised Handbook issued in November 2007, further
provides that an employee should report incidents of harassment to his Supervisor, but if not
comfortable doing so, may talk to the Department Coordinator or Manager and then if still
needing to talk with someone after completing both of those steps, may contact HR. (Doc. 216-2
at 50).
Taking the facts in the light most favorable to Carter, it is clear that Carter complied with
Austal’s reporting policy7 and that that Austal had notice of the harassing behavior. However,
there remains a genuine issue of material fact as to whether Austal exercised reasonable care to
correct promptly the harassing behavior; an element of the defense to liability for both
supervisory and co-employee harassment. Specifically, Carter has presented evidence that even
after he reported the racially offensive graffiti and Confederate flags, the work environment
7

Austal’s contention that Carter “waived his right” to include certain “misconduct” as a basis for
his claims because he “elected not to report” same “in accordance with Austal’s policy” as “he failed to
report any of the alleged incidents to Human Resources,” lacks any merit as he clearly was not required to
report the incident to HR. This finding applies also to Carter’s complaints about supervisor’s and coworkers’ conduct.

14

remained unchanged with the exception that bathroom walls were periodically painted and after
this litigation commenced the bathrooms were monitored. These facts, combined with Austal’s
admissions regarding failure to train8 its supervisors on Austal’s harassment policy prior to the
Summer of 2008,9 create an issue of fact for the jury as to whether Austal should be held liable
for the actions of its employees. As such, Austal’s motion for summary judgment on Carter’s
hostile work environment claim is DENIED.
V.

Section 1981/Title VII – Disparate Treatment (Race)
Carter contends that he was intentionally discriminated against with respect to "terms and

conditions of his employment" because of his race in violation of Title VII and Section 1981.
Austal moves for summary judgment on Carter’s Title VII/Section 1981 promotion claims that
he was not offered the Warehouse Coordinator job in Summer 2006 and 2007; and Carter’s
Section 1981 promotion claim concerning the October 2004 Warehouse Supervisor position.
In individual disparate treatment claims, “the plaintiff bears the burden of proving that
the employer discriminated against him because of his race.” Cooper v. Southern Co., 390 F.3d
695, 723 (11th Cir. 2004), overruled on other grounds, Ash v. Tyson Foods, Inc., 546 U.S. 454,
456-457 (2006). See also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000);
Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). Where there is no direct evidence
of discrimination or a statistical pattern of discrimination, the burden shifting analysis of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) applies. Under this framework, the

8

Doc. 284-3 (Dep. Lindley I at 174); Doc. 284-9 (Dep. Carver I at 60); Doc. 284-11 (Dep.
O’Dell at 210); Doc. 285-1 (Dep. Keeler at 47, 65, 97); Doc. 285-2 (Dep. Browning at 56-57)).
9

(Doc. 284-3 (Dep. Lindley I at 174); Doc. 284-4 (Dep. Lindley II at 74-75).

15

plaintiff must establish a prima facie case of intentional race discrimination.10 Id. at 802. See
also e.g., E.E.O.C. v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1272 (11th Cir. 2002). If a prima
facie case is established, the burden shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its actions. Id. Once the employer satisfies its burden, the burden
shifts back to the plaintiff to offer evidence that the alleged reason of the employer is a pretext
for unlawful discrimination. Id. at 1272-1273.
To establish a prima facie case of failure to promote, a plaintiff must show that: 1) he is a
member of a protected class; 2) who sought and was qualified for positions that the employer
was attempting to fill; 3) despite his qualifications he was rejected; and 4) the employer either
continued to attempt to fill the positions or in fact filled the positions with persons outside the
plaintiff’s protected class. See, e.g., Harrington v. Disney Regional Ent., Inc., 276 Fed. Appx.
863, 872 (11th Cir. 2007) (citing Crawford v. Western Electric Co., Inc., 614 F.2d 1300, 1315 (5th
Cir. 1980)). A plaintiff claiming that he was discriminatorily denied a promotion usually must
show that he actually applied for the position as part of his prima facie case. Taylor v. Runyon,
175 F.3d 861, 866 (11th Cir. 1999); Combs v. Plantation Patterns, 106 F.3d 1519, 1539 at n. 11
(11th Cir. 1997). Where an employer has an informal promotion procedure (i.e., job openings are
not posted or applications are not required), however, an employee may establish this element by
showing that the position was available and that the employer had some reason or duty to
consider him for same. Jones v. Firestone Tire and Rubber Co., Inc., 977 F.2d 527, 533 (11th Cir.
1992); Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1133-1134 (11th Cir. 1984).
10

"Claims of race discrimination under § 1981 are analyzed in the same manner as claims
brought under Title VII." DeLeon v. ST Mobile Aerospace Eng’g, Inc., 2010 WL 500446, *15 (S.D. Ala.
Feb. 9, 2010).

16

A.

Warehouse Coordinator Job – Summer 2006 and 2007

1.

Carter’s Allegations

Carter contends the position of Warehouse Coordinator was repeatedly given to equally
or less qualified Caucasian employees, as promotions, instead of to Carter. Specifically, Carter
alleges that he should have been promoted to the Warehouse Coordinator position in the Summer
of 2006, and in 2007.11
First, Carter alleges that sometime in the Summer of 2006, he discussed his interest in the
Warehouse Coordinator position with Caucasian Warehouse Manager Erin Regan and was
interviewed for the position, but she offered the position to Caucasian employee Harry Parker.
(Doc. 285-8 (Dep. Carter 88-91)). According to Carter, Parker declined the position and told
Regan that Carter was already doing the job and “know[s] the job.” (Id. (Dep. Carter at 91-92,
94)). Carter had trained Parker. (Id. (Dep. Carter at 146)). Carter talked with Regan (and a
Production Manager) about the position (“I told them that I came because I was interested in the
job. I ran the job before[]”); however, Regan never offered Carter the position even though
Carter had “worked the job already.” (Id. (Dep. Carter 94-99)). Austal hired Caucasian employee
Tom Bishop in April 2007 as the Warehouse Coordinator. (Id. Dep. Carter at 99-101, 141, 144)).
Carter complained to his supervisors Harry Parker and Wilbur Lee, that he thought the decision
had been made due to his race; Carter felt that Parker “knew what I was talking about and we left
it at that.” (Doc. 285-8 (Dep. Carter 141-144)). Bishop subsequently “came to” Carter and told
him that “Austal management wanted me to train him to do the Coordinator job.” (Doc. 285-9

11

As detailed supra, Carter’s Title VII claim as to the June 2005 promotion for this position has
been deemed time-barred.

17

(Decltn. Carter at ¶10)). Bishop quit Austal in September 2007. (Id.).

Second, in 2007 after Bishop quit the Warehouse Coordinator position, Austal again did
not offer the job to Carter. (Doc. 285-9 (Decltn. Carter at ¶10). Instead, Austal hired Caucasian
supervisor Jerrod Bradford as Warehouse Coordinator, even though he had no warehouse
experience. (Id.) After being promoted to the position, Bradford requested that Carter “train him
on how to do his job.” (Id.) Carter complained to Bradford about training him, refusing to do so,
because “Austal knows I know the job but won’t give me the job.” (Id.)
2.

Austal’s Contentions

Austal contends that Carter has failed to establish a prima facie case of discrimination
based on failure to promote him because Carter has not demonstrated that he was qualified and
applied for the promotion or that the employee promoted was equally or less qualified than
Carter and that Carter failed to submit sufficient information to demonstrate that he was similarly
situated in all relevant respects. Specifically, Austal asserts while Carter contends he should
have been promoted to Warehouse Coordinator in the Summer 2006 and 2007, he has not offered
any evidence regarding the experience, qualifications and skills of his alleged comparators to
establish that they were similarly situated employees. (Doc. 201 at 18).
3.

Discussion

As noted supra, to establish a prima facie case of failure to promote, a plaintiff must
show that: 1) he is a member of a protected class; 2) who sought (or should have been informed
of the position) and was qualified for positions that the employer was attempting to fill; 3)
despite his qualifications he was rejected; and 4) the employer either continued to attempt to fill
the positions or in fact filled the positions with persons outside the plaintiff’s protected class.

18

Austal does not dispute any of the elements for a prima facie case of disparate promotion,
apart from simply asserting that Carter’s proposed comparators are not similarly situated. (Doc.
201 at 20-21). Austal conflates the prima facie requirements of a discriminatory pay claim with
the prima facie requirements to establish a failure to promote claim.

Similarly situated

comparators are not necessary to establish a prima facie claim of failure to promote, rather
plaintiff must only show that the position was filled with a person outside his protected class.
See Harrington v. Disney Regional Ent., Inc., 276 Fed. Appx. 863, 872-873 (11th Cir. 2007)
(providing that “[t]he elements are different for disparate pay and promotion claims….”).
Carter is a member of a protected class. There is no evidence that he applied for each of
the promotions at issue, however, that deficiency is overcome by the unrebutted evidence, cited
by Carter, of the informality of the promotion process at Austal and the evidence that he was
qualified for the promotions within the Warehouse Department (particularly given that he had to
train the individuals hired for the position on how to do the job). Moreover, the record reveals
that Carter specifically expressed his interest (and in his opinion applied) for the Summer of
2006 opening. The Court finds that there is sufficient evidence that Austal had reason to
consider Carter for the Summer 2006 and 2007 Warehouse Coordinator promotions within the
Warehouse Department that he was denied and that Carter was qualified for the promotions in
this department which were filled with individuals outside of Carter’s protected class. Thus,
Carter has made his prima facie case. Because Austal has failed to present any legitimate nondiscriminatory reason for its decision, the motion for summary judgment on this claim of failure

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to promote is DENIED in part.12
B.

Warehouse Supervisor Position

At the outset, summary judgment has been granted on Carter’s Title VII warehouse
supervisor claim such that only Carter’s Section 1981 warehouse supervisor claim is at issue.
1.

Carter’s Allegations

Carter contends that while he was offered the promotion to “$32,000/year salary
Warehouse Supervisor” in October 2004, he turned down the position because he was only
offered $32,000/year salary. (Doc. 285-8 (Dep. Carter at 83-88)). According to Carter, accepting
the promotion would mean that he would be making less per hour and/or annually than he was as
a general warehouse employee (Carter testified that after overtime was applied he made around
$38,000/year). (Id. (Dep. Carter 83-88).
2.

Austal’s Contentions

Austal contends that it offered Carter the Warehouse Supervisor position but that he
turned it down, explaining to Austal that he could make more money per year if he could be
compensated for overtime as an hourly employee. (Doc. 201 at 21).
3.

Discussion

As noted supra, to establish a prima facie case of failure to promote, a plaintiff must
show that: 1) he is a member of a protected class; 2) who sought (or should have been informed
of the position) and was qualified for positions that the employer was attempting to fill; 3)
despite his qualifications he was rejected; and 4) the employer either continued to attempt to fill

12

Previously granted in part, on the time-barred nature of Carter’s Warehouse Supervisor
promotion and on the June 2005 Warehouse Coordinator claim, under Title VII. See supra.

20

the positions or in fact filled the positions with persons outside the plaintiff’s protected class.
Carter is a member of a protected class. The record reveals that Carter should have been
informed of the position and in fact, that Carter was sought out by Austal for the promotion.
Additionally, the record indicates that Carter was qualified for the job. Moreover, Austal did
ultimately fill the position with a person outside of Carter’s protected class. However, Carter
was not rejected by Austal for the Warehouse Supervisor promotion. Austal sought out Carter
for the promotion, offered him the promotion and Carter rejected the promotion. Specifically,
even though Carter claims he “didn’t turn the job down” but he “turned down the money[]”
(Doc. 285-8 (Dep. Carter at 84-86)), the evidence reveals that he, in fact, did turn down the
promotion.

Carter testified that he specifically told Austal that he would only accept the

promotion if Austal would pay him $38,000, as that was the amount of money he made in the
prior year. (Doc. 285-8 (Dep. Carter at 85-88)).13 After Carter rejected the $32,000/year annual
Warehouse Supervisor promotion, Austal hired Caucasian employee Harry Parker as Warehouse
Supervisor and paid him $34,000/year. (Doc. 285-9 at 4 (Decltn. Carter at ¶9)). Thus, Carter
has not established that he was rejected for a promotion for which he was qualified. Rather, the
evidence is that Carter rejected the offer and would have rejected the offer at $34,000.
13

In the pending Motion to Strike (Doc. 347), Austal contends that Carter’s deposition testimony
(that he told Austal he would take the supervisor position offered to him only it if would pay him $38,000
as he made in the prior year (Doc. 347-1 at 4-6 (Dep. Carter at 85-87)) contradicts his Declaration
statement of “I told Austal that I would at least need to make what I made last year [$34,000] to take the
job[]” (Doc. 285-9 (Decltn. Carter at ¶9)). The Court has reviewed the cited deposition pages and finds
the deposition testimony inconsistent with the cited sentence of Carter’s Declaration. Thus, Austal’s
Objection is SUSTAINED as to the amount “$34,000” as contained in Paragraph 9.
Additionally, Carter’s sworn deposition testimony contradicts the allegations in the Third
Amended Complaint (Doc. 37 at 62 at ¶288). In the complaint, Carter alleges that he “asked to receive
the same salary as Parker, $34,000 per year, but the Defendant refused.” (Id.)

21

Accordingly, Austal’s motion for summary judgment on Carter’s Section 1981 promotion claim
for the Warehouse Supervisor position is GRANTED.
VI.

Punitive Damages
Carter seeks an award of punitive damages against Austal. Upon consideration, the Court

finds that resolution of the punitive damages issue is a matter better suited for trial. Thus, it is
ORDERED that Austal’s motion for summary judgment regarding Carter’s punitive damages
claim is CARRIED TO TRIAL.
VII.

Conclusion
Accordingly, it is ORDERED that Austal’s motion for summary judgment is DENIED

as to Carter’s hostile work environment claim; GRANTED as to Carter’s failure to adequately
train claim; GRANTED as to Carter’s disparate pay claims; GRANTED in part and DENIED
in part as to Carter’s disparate promotion claims, as detailed herein; and GRANTED as to
Carter’s retaliation claim. Carter’s punitive damages request is CARRIED TO TRIAL.
DONE and ORDERED this the 27th day of July 2011.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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