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

Filing 420

ORDER re 185 Motion for Summary Judgment. Austal's 185 motion for summary judgment is GRANTED as to Sullivan's hostile work environment claim; GRANTED as to Sullivan's failure to promote claims; GRANTED as to Sullivan's training claim; and GRANTED as to Sullivan's retaliation claim. Sullivan's punitive damages request is thus MOOT. Signed by Judge Kristi K. DuBose on 8/29/2011. copies to parties. (sdb)

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

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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.
185, 186, 214), Plaintiff’s Opposition (Doc. 313) and Defendant’s Reply (Doc. 335); 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). Gloria Sullivan (“Sullivan”) asserts claims for hostile work environment and discrimination
(promotion) based on race in violation of Title VII and 42 U.S.C. § 1981. (Doc. 37 at 124-129).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 claims.
2

Originally, Sullivan alleged a separate claim for retaliation (Doc. 37 at 126 -128 at ¶¶656, 664665, 667-669) and training (Id. at ¶657, 672). Sullivan did not address these claims in response to
Austal’s motion and moreover, in her opposition brief now specifically represents that she “is pursuing
claims against Austal for only hostile work environment and discrimination on the basis of race in regards
to pay and promotions” under Title VII and Section 1981. (Doc. 313 at 2 (emphasis added)).
Accordingly, the Court construes Sullivan’s intentional exclusion of her retaliation and training claims as
a concession of these claims. Likewise, while Sullivan alleges a failure to promote claim that Austal
hired “Jason” after November 20, 2006 to work in Inventory instead of her (Doc. 214-1 (Dep. Sullivan at
49-56)), Sullivan has not addressed this claim in response to Austal’s motion and thus, the Court
construes Sullivan’s intentional exclusion of this particular failure to promote claim as a concession of
said claim. Thus, it is ORDERED that Austal’s motion for summary judgment, as to Sullivan’s

(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. 186 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).
B.

Sullivan’s Employment

Gloria Sullivan began working at Austal on September 15, 2003 as a Warehouse
Assistant in the Warehouse Department at the rate of $9/hour. (Doc. 214-1 (Dep. Sullivan at
23); Doc. 214-1 at 111; Doc. 295 at 36 (Exhibit 105-Sealed); Doc. 214-2 at 11 (Decltn.
Lindley)). During her employment, Sullivan received ten (10) pay raises dated December 15,
2003 (from $9/hour to $10/hour); August 19, 2004 (from $10/hour to $11/hour); February 8,

retaliation claim, training claims, and failure to promote claim concerning “Jason,” is GRANTED.
Additionally, while Sullivan initially alleged disparate impact claims against Austal, said claims
have been dismissed from this litigation. (Doc. 366).
Moreover, Austal has moved for summary judgment on claims not included in the Third
Amended Complaint (Doc. 186 at 5, 25-29). Sullivan also address disparate pay discrimination claims
that were not alleged in the Third Amended Complaint. In Pleming v. Universal-Rundle Corp., 142 F.3d
1354, 1357 (11th Cir. 1998), the Court held that the “parties frame the scope of the litigation at the time
the complaint is filed.” Moreover, in Davis v. Coca-Cola Bottling Co., Consol., 516 F.3d 955 (11th Cir.
2008), the court highlighted the difficulty in appellate review of voluminous pleadings involving multiple
defendants. In so doing it is clear that the 11th Circuit expects the District Court to “strip the case down
and identify each claim and defense.” Id. at 982. In an effort to do so the court must rely on the claims
asserted in the Third Amended Complaint. Thus, claims asserted in depositions and not included in the
complaint have not been considered and will not be addressed. See Smith v. Books-A-Million, 398 Fed.
Appx. 437 (11th Cir. 2010) (Claims not included in the complaint were not required to be considered by
the District Court).

2

2005 (From $11/hour to $12/hour); August 19, 2005 (from $12/hour to $13.50/hour); May 22,
2006 (from $13.50/hour to $14/hour); January 3, 2007 (from $14/hour to $15/hour); July 2, 2007
(from $15/hour to $16/hour); June 16, 2008 (from $16/hour to $18/hour for “step up for week”);
June 30, 2008 (from $16/hour to $16.48/hour for cost of living adjustment); and September 2010
(to $18.57/hour). (Doc. 214-1 at 113, 115, 117, 119, 121, 122, 124); Doc. 222-1); Doc. 295 at 36
(Exhibit 105-Sealed); Doc. 214-2 at 11 (Decltn. Lindley)). Sullivan is presently employed with
Austal as a Logistics Associate II. (Doc. 214-2 at 11 (Decltn. Lindley)).
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
3

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.@
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 she 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
4

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)
(unpublished); Jordan v. City of Montgomery, 2008 WL 2529573, *1 (11th Cir. Jun. 26, 2008)
(unpublished). A failure to file a timely charge with the EEOC results in a bar of the claims
contained in the untimely charge. Id.
Sullivan signed her first3 EEOC Charge (for race, retaliation and “continuing action”) on
November 13, 2006 and it was “received” on November 20, 2006.

(Doc. 214-4 at 2-4).

Calculating from the November 20, 2006 date, Austal contends that only those discrete
discriminatory acts occurring within the 180 days prior (between May 25, 2006 and November
20, 2006) are timely. From this, Austal seeks summary judgment on: 1) “[a]ll alleged acts”
occurring between Sullivan’s hire date of September 15, 2003 and May 25, 2006; 2) Sullivan’s
July 7, 2004 promotion claim concerning Wilbert Lee; and 3) Sullivan’s April 11, 2005
promotion claim concerning Harry Parker.4
Sullivan contends that Austal’s interpretation is incorrect and contrary to well established

3

Sullivan filed a second EEOC Charge on February 19, 2010. (Doc. 286-10).

4

While Austal also moves for summary judgment on the untimely nature of Sullivan’s
unwarranted counseling claims and failure to provide training claims (Doc. 186 at 9), summary judgment
has already been granted in favor of Austal on the training claims and Sullivan has not alleged
unwarranted counseling claims in the Third Amended Complaint.

5

law, as although many acts upon which a plaintiff’s Title VII claims rely may occur outside the
180 filing period, “they are part of the same actionable hostile environment claim.” (Doc. 313 at
13-14 (citing McKenzie v. Citation Corp., LLC, 2007 WL 1424555 (S.D. Ala. 2007)). Sullivan
is correct as it relates to her 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
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.
Sullivan’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. Accordingly, Austal’s motion for summary judgment
on this hostile work environment claim is DENIED.
As for Sullivan’s July 7, 2004 promotion claim concerning Wilbert Lee and April 11,
2005 promotion claim regarding Harry Parker, promotion claims are “discrete acts.” See, e.g.,
6

Morgan, 536 U.S. at 114: “Discrete acts such as termination, failure to promote, denial of
transfer, or refusal to hire are easy to identify. Each incident of discrimination and each
retaliatory adverse employment decision constitutes a separate actionable “unlawful employment
practice.” Id. (emphasis added). 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. 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. See, e.g., 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., 177 Fed. Appx. 1 (11th Cir. Apr. 7, 2006) (unpublished)). Austal is correct that these
promotion claims, relating to Lee and Parker, before May 25, 2006, are not timely. Thus,
regarding Austal’s claim that “[a]ll alleged acts” of failure to promote occurring between
Sullivan’s September 15, 2003 hire date and May 25, 2006 are barred under Title VII, this would
include Sullivan’s alleged denials of promotions before May 25, 2006 – as these would also have
been discrete discriminatory acts. See e.g., Morgan, supra. Accordingly, Austal’s motion for
summary judgment as to Sullivan’s Title VII failure to promote claims prior to May 25, 2006, is
GRANTED and such claims are hereby DISMISSED.

7

B.

Section 19815
Austal contends that Sullivan’s failure to promote claims concerning the 2004 Wilbur

Lee promotion and the 2005 Harry Parker promotion, see supra, are also untimely under Section
1981 as barred by the two (2) year statute of limitations for such claims. See, e.g., McCray v.
Wal-Mart Stores, Inc., Slip Copy, 2009 WL 734138, *9 (M.D. Ala. Mar. 17, 2009). Based on
the statute of limitations and the date the original complaint was filed in this case (March 20,
2008), Austal asserts that only those failure to promote claims which allegedly occurred between
March 20, 2006 and March 20, 2008 are actionable. Austal is correct. Accordingly, Austal’s
motion for summary judgment as to Sullivan’s Section 1981 promotion claims prior to March
20, 2006, based on the statutory time period, is GRANTED and Sullivan’s Section 1981
promotion claims concerning Lee and Parker are DISMISSED.
IV.

Austal’s “Reply” Claims
Austal asserts new “untimely” Title VII and Section 1981 arguments in its Reply. (Doc.

335 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)
5

While Austal also moves for summary judgment on the untimely nature of Sullivan’s pay,
discipline, training and counseling claims (Doc. 186 at 10), summary judgment has already been granted
in favor of Austal on Sullivan’s training claim and Sullivan did not allege pay, discipline and/or
counseling claims in the Third Amended Complaint such that those claims are not at issue here.

8

(“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 are impermissible and 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, 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”).
V.

Section 1981/Title VII – Hostile Work Environment (Race)
A.

Motion To Strike6

Austal objects to certain portions of the Declaration of Gloria Sullivan (Doc. 285-24).
Specifically, Austal objects to certain portions of Paragraph 3, Paragraph 4, Paragraph 8 and
6

As noted in the Court’s prior Order (Doc. 357), Austal’s Motion to Strike is construed as a Rule
56(c)(2) Objection. With the December 1, 2010 rules change to Rule 56, it no longer appears that motions
to strike exhibits submitted on summary judgment are appropriate. Revised Rule 56(c)(2) provides
instead, that “[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.” FED.R.CIV.P. 56(c)(2). The Advisory Committee Notes
specify further as follows: “Subdivision (c)(2) provides that a party may object that material cited to
support or dispute a fact cannot be presented in a form that would be admissible in evidence. The
objection functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the
proponent to show that the material is admissible as presented or to explain the admissible form that is
anticipated. There is no need to make a separate motion to strike. If the case goes to trial, failure to
challenge admissibility at the summary-judgment stage does not forfeit the right to challenge
admissibility at trial.” FED.R.CIV.P. Adv.Comm.Notes (2010 Amendments (emphasis added)).

9

Paragraph 9 of her Declaration, asserting that these portions contain conclusory and speculative
statements not based on personal knowledge, and which are highly prejudicial.
First, one sentence in Paragraph 3 of Sullivan’s Declaration states “Human Resources
never interviewed or got a statement from me or anyone else regarding this noose incident.”
Austal objects to this sentence as conclusory and not within her personal knowledge. However,
this statement is based on Sullivan’s knowledge insofar as Sullivan is declaring that she was
never interviewed by HR and never gave a statement to HR. The only portion of this sentence
which is objectionable is Sullivan’s statement “or anyone else.” Sullivan would not be privy to
what HR did or did not do with other employees. And Sullivan has not established that she has
personal knowledge of HR’s actions concerning this noose incident. As such, Austal’s Objection
is SUSTAINED only as to the portion of this sentence “or anyone else.”
Second, the sentence “Austal never met with the employees to discuss the incident[,]”
contained in Paragraph 4 of Sullivan’s Declaration, presents a similar situation such that Austal’s
Objection to this sentence is SUSTAINED. The Court finds as such, particularly given that
Sullivan simultaneously declares in the same paragraph that HR “called” her co-worker Jerome
Pettibone “to HR” and HR talked with him about the incident. According to Sullivan, HR met
with at least one employee, Jerome Pettibone.
Third, Austal objects to one sentence in Paragraph 8 of Sullivan’s Declaration: “Wilbur
Lee, white supervisor, would also discuss how he liked to have sex and the sexual positions he
preferred like his wife “being on her knees” in front of me.” The Court finds that this sentence
of Paragraph 8 is irrelevant to Sullivan’s race discrimination claims, such that Austal’s
Objection as to this sentence of Paragraph 8 is SUSTAINED.

10

Fourth, Austal objects to the first sentence of Paragraph 9 of Sullivan’s Declaration:
“Jason Clarke, white co-worker, told me he heard I “could be a bitch.’” Again, this sentence is
irrelevant to Sullivan’s race discrimination claims as there is no indication that this statement
was based on Sullivan’s race -- such that Austal’s Objection to this sentence of Paragraph 9 is
SUSTAINED.
B.

Hostile Work Environment

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).7

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, 545-546 (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) Sullivan’s evidence of sporadic and isolated incidents of racially

7

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.

11

hostile comments, conduct and graffiti during the time he was employed do not meet the severe
or pervasive threshold; 2) Sullivan makes no allegations and presents no evidence that the
allegedly hostile environment unreasonably interfered with his ability to work on a day-to-day
basis; 3) Austal maintained a policy establishing how an employee should report discriminatory
conduct, but Sullivan failed to report certain conduct; and 4) Austal took reasonable preventative
and corrective/remedial measures to prevent a hostile work environment.
A.

Severe or Pervasive

As to whether the conduct was severe and pervasive, Sullivan points to the following
evidence.8

Regarding racially and hostile discriminatory comments,9 Sullivan has heard

“throughout” her employment Caucasian co-workers refer to African American co-workers as
8

Sullivan also relies on the allegations of the other 22 plaintiffs (Doc. 313 at 2-4, 16-17, 19, 23,
27, 30-33) to support that an overall racially charged work atmosphere exists at Austal (i.e., viewed
through the lens of the plaintiffs’ collective allegations versus each plaintiff’s specific allegations). “To
rely on the evidence, each [plaintiff] must show that he was aware of those incidents at the relevant time
he alleges the hostile work environment.” See, e.g., Melton v. National Dairy, LLC, 705 F. Supp. 2d
1303, 1342 (M.D. Ala. 2010) (citing Edwards Wallace Comm. College, 49 F.3d 1517, 1522 (11th Cir.
1995)) (emphasis in original). See also e.g., Head v. Pitts Enterprises, Inc., Slip Copy, 2010 WL
2773376, *8 (M.D. Ala. Jul. 14, 2010); McKenzie v. Citation Corp., LLC, 2007 WL 1424555, *13 (S.D.
Ala. May 11, 2007). Courts in the Eleventh Circuit may consider statements not directed at a plaintiff and
even hearsay statements, so long as the plaintiff was aware of the statements at the time he was employed.
See, e.g., Yeomans v. Forster and Howell, Inc., Slip Copy, 2010 WL 3716394, *5-6 (M.D. Ala. Sept. 10,
2010). The Court has only considered the evidence of which Sullivan testified that she was aware.
9

To support her hostile work environment claim, Sullivan also alleges that her removal from the
Conex window in the warehouse in 2003 was racially offensive (Doc. 214-1 (Dep. Sullivan at 147));
Caucasian supervisor John Highland sent her a request slip for toilet tissue “to wipe his ass” yet the
warehouse did not carry toilet tissue (Id. (Dep. Sullivan at 208-209); Caucasian co-worker Jason Clarke
told her that he heard she “could be a bitch[]” (Id. (Dep. Sullivan at 228-229); and that the tearing of
plastic down in the area where she worked by a co-worker was racially motivated (Id. (Dep. Sullivan at
239)). Such statements and conduct, however, are not indicative of racial animus to support a hostile
work environment claim. For example, Sullivan explained in her testimony that the only reason she
thought Jason Clarke’s comment to her was racially motivated was because “it was coming from a white
man to a black woman.” (Doc. 214-1 (Dep. Sullivan at 230)). While the comments and/or conduct may
have been unpleasant to Sullivan, there is no indication of a racial element.

12

“boy;” once a Caucasian supervisor Leland Daughtry called African American employee Carlos
Johnson “boy;” and Caucasian supervisor Wilbur Lee called African American employee
Franklin Thomas “boy” and “Darth Vader” on “several different occasions.” (Doc. 214-1 (Dep.
Sullivan at 214); Doc. 285-24 at 3 at ¶¶7-8 (Decltn. Sullivan)). Sullivan complained about Lee’s
comments to Thomas, to her supervisor, but “his racial comments and actions still continue to
this day.” (Doc. 285-24 at 3 at ¶8 (Decltn. Sullivan)).
Sullivan alleges that Caucasian supervisor Erin Andrews “would barely talk to us, far as
blacks….it’s been times that she would walk by us, you know, somebody was white standing
there, she would speak to the white and wouldn’t speak to the blacks.” (Doc. 285-23 (Dep.
Sullivan at 131)). There is no indication in the record that this conduct was racially motivated.
According to Sullivan, she was made aware by other employees that Caucasian
supervisor John Highland may have used the word “nigger” and “he don’t like blacks on his
crew.” (Doc. 214-1 (Dep. Sullivan at 209, 211-212)). Sullivan did not report that she had heard
that Highland may have used the word “nigger.” (Id. (Dep. Sullivan at 212)).
Sullivan “[m]aybe in a joking manner[]” has heard someone (maybe Caucasian maybe
African American) use the word “nigger” at work six years ago, but she was “not 100 percent
sure.” (Doc. 214-1 (Dep. Sullivan at 212-213)). Sullivan added that “[b]lacks do it [use the
word “nigger”] all the time[]” and while she has heard it from African Americans, it is not
offensive to her “coming from the black[s].” (Id. (Dep. Sullivan at 213-214)). Sullivan testified
“[i]t’s not an everyday thing.” (Id. (Dep. Sullivan at 214)).
Sullivan was subjected to displays of the Confederate flag on co-workers’ clothing; she
finds the flag offensive as “it’s something bad toward black peoples.” (Doc. 214-1 (Dep.

13

Sullivan at 225-226)). Sullivan only reported the flag imagery to Fred Carter, about “the [one]
guy that was walking across the yard with the Confederate flag on and …supervisor at Austal
seen him and didn’t do nothing about it.” (Id. (Dep. Sullivan at 226-227)). According to
Sullivan, “”[s]houldn’t have to[]” complain to the supervisors. (Id. (Dep. Sullivan at 227)).
Sullivan, however, elaborated in her Declaration that she personally witnessed Caucasian
employees and supervisors “wearing shirts and other clothing” displaying the flag “frequently”
and saw the flags “displayed all over the Austal facility, including, the back of trucks, white
employee’s tool boxes, white employee’s welding hats, and also on the bathroom walls.” (Doc.
285-24 (Decltn. Sullivan at 4 at ¶13)).

There is no indication that Sullivan reported the

Confederate flag imagery. Austal took no action regarding Confederate flag imagery in the
workplace.
Sullivan has been shown some of the racial graffiti which has appeared on the men’s’
bathroom walls and stalls, as photographed by camera phones by fellow co-workers. (Doc. 2141 (Dep. Sullivan at 215-216, 220-222, 224) (Doc. 285-23 (Dep. Sullivan at 223, 256-257). At
her deposition, Sullivan could not recall the racial graffiti that she was shown by others, except
generally more use of the word “nigger.” (Doc. 214-1 (Dep. Sullivan at 221)). Sullivan did not
report the racial graffiti that she was shown to Austal. (Id. (Dep. Sullivan at 222)). Sullivan
“may” have also seen the phrase “White Power” and the graffiti “how many niggers do you see
around here wearing white hats,” but she is “not 100 percent sure.” (Id.) In sum, Sullivan does
not recall everything that she saw on her co-workers’ cell phones: “I don’t recall exactly what it
was[;]” and “I saw racial remarks on the cell phone. I don’t recall exactly what it was.” (Doc.
285-23 (Dep. Sullivan at 223-224)). Sullivan was also shown a drawing of African American

14

co-worker Franklin Thomas, that possibly had a noose around his neck, on a camera phone.
(Doc. 214-1 (Dep. Sullivan at 218)).
Based on her January 31, 2011 Declaration, Sullivan has recalled more specifics
regarding the racial graffiti. (Doc. 285-24 at 2 at ¶2 (Decltn. Sullivan)). Namely, Sullivan states
that since 2003 she has seen and is aware of: “nigger,” “KKK,” “White Power,” “kill all the
niggers,” “KKK rules,” “black people only work in cotton fields,” “before you know it niggers
are going to run Austal. I hate them” have been found in the bathrooms; a co-worker told her he
saw racial epithets including “all the monkeys need to go back to Africa” and “what’s the
difference between a nigger and a monkey”; and as recently as January 2011, Sullivan was told
be another co-worker that he had seen “Austal would be a better place without any niggers.”
(Id.)
The record reveals that starting in August 2007, Austal responded to complaints about the
graffiti by cleaning the bathrooms and painting black over the graffiti on a regular basis. (Doc.
285-2 (Dep. Browning at 16, 110). Nevertheless, the painting did not deter the offending
scribblers, as the walls would soon be filled again with racially offensive graffiti. (Doc. 284-4
(Dep. Lindley II at 95-96, 166-168, 188-190, 195-196, 202-203); Doc. 284-5 (Dep. Lindley III at
254); Doc. 284-11 (Dep. O’Dell at 74-75); Doc. 284-7 (Dep. Friedlieb I at 84)). As noted by
Sullivan, “[t]hey tried at one time to paint the walls, but the slurs and graffiti just go right back
up on the walls.” (Doc. 285-24 at 2 at ¶2 (Decltn. Sullivan)).
Sullivan was made aware that her co-workers discovered a noose in the Austal warehouse
during one weekend in 2008, and the noose was still hanging in the warehouse the following
Monday. (Doc. 285-24 at 2 at ¶3 (Decltn. Sullivan)). There is no indication in the record that

15

Sullivan actually saw the noose and/or reported the noose. Sullivan was also made aware of a
noose discovered by her co-workers in the Austal breakroom in May 2008. (Doc. 285-24 at 3 at
¶4 (Decltn. Sullivan)). There is no indication in the record that Sullivan actually saw the noose
and/or reported the noose. Sullivan was made aware of a third noose “on the HSF side in or
about 2008.” (Doc. 285-24 at 3 at ¶5 (Decltn. Sullivan)). There is no indication in the record that
Sullivan actually saw the noose and/or reported the noose.
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.
There is sufficient evidence, if believed by a jury, that Sullivan subjectively perceived her
work environment to be racially hostile. Thus, the Court need only determine whether Sullivan’s
perception was objectively reasonable.

16

When viewing the facts in the light most favorable to Sullivan, a reasonable jury could
not find that the harassing conduct alleged was frequent and severe. According to the evidence,
Sullivan was not subjected to any, much less regular, racially discriminatory comments or
conduct, and moreover, apart from hearing her co-workers be called “boy,” she was only told
about certain racial comments (which were not directed to her) on a handful of occasions.
Sullivan did not actually encounter offensive racial graffiti during her employment in the
workplace bathrooms – she was only shown photographs of such graffiti by her co-workers, by
viewing the photographs they had taken on their cell phones. The same is true for the three (3)
nooses; Sullivan did not personally see them but was only told about them and did not report
them to Austal. Additionally, while Sullivan testified that she saw Confederate flag imagery on
clothing, the back of trucks, tool boxes, welding hats, and on the bathroom walls, Sullivan did
not report the flag imagery or testify as to the frequency of seeing such imagery, etc.
While much of the repeated conduct may not have been physically threatening, it is not
unreasonable to infer from Sullivan’s allegations that some of the conduct was racially
demeaning, humiliating and degrading. McKenzie, 2007 WL 1424555 at *13. However, there is
no indication in the record that Sullivan was exposed to regular/daily racial comments or
conduct, Confederate imagery; and/or that she actually encountered any, much less regular/daily
racial graffiti. At best, Sullivan has provided evidence of being shown racially offensive graffiti
by her co-workers, overhearing her co-workers being called “boy” and being told about three (3)
nooses being found (which she never actually saw herself). Further, she has not established that
any of the repeated conduct was severe, physically threatening or that it unreasonably interfered
with her job performance. Even though Sullivan stated in her Declaration – in conclusory

17

fashion – that being made aware of the graffiti, nooses and comments by others “has had a
negative effect on my employment” (Doc. 285-24 at 3 at ¶3 (Decltn. Sullivan)), she has not
indicated what that negative effect has been and moreover, Sullivan has received ten (10) pay
raises since she was hired in 2003 and remains employed at Austal. See supra. Thus, a jury could
not reasonably find that the incidents alleged were severe and pervasive.10
Eleventh Circuit precedent mandates that courts consider “the totality of the
circumstances” such that the absence of one factor is not dispositive. See, e.g., Miller, 277 F.3d
at 1277. In this case, Sullivan has not submitted sufficient evidence demonstrating that any of
the allegedly discriminatory comments and/or conduct was frequent (apart from the graffiti
which she herself never encountered in the bathrooms), severe, physically threatening,
humiliating, demeaning and/or unreasonably interfered with her job.

See, e.g., Barrow v.

Georgia Pacific Corp., 144 Fed. Appx. 54, 57-58 (11th Cir. 2005) (concluding that evidence of
"displays of the rebel flag on tool boxes and hard hats, the letters ‘KKK’ on a bathroom wall and
on a block-saw console, and a noose in another employee’s locker,’" as well as several threats to
"kick plaintiff’s ‘black ass’" or threats that if he looked at a white girl he was going to get "cut,"
and the use of racial epithets including "nigger," "boy," and "black boy," reflected conduct that
was "isolated," "sporadic," and "random" and did not amount to "severe and pervasive”
harassment). While there is “not simply some magic number of racial or ethnic insults” that
preclude summary judgment, it is repeated incidents of...harassment that continue despite the
employee's objections [that] are indicative of a hostile work environment.” Miller, 277 F.3d at
10

The Court has considered the evidence presented by each plaintiff in isolation. Accordingly,
on the claim of hostile work environment there are different determinations amongst plaintiffs based on
the specificity and quantity of evidence presented by each plaintiff.

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1276 (citation and quotation omitted). In sum, under the totality of the circumstances and
considering the allegations in the light most favorable to Sullivan, she has not produced
sufficient evidence – if believed by a jury – to create an issue of fact as to whether she was
subjected to racial harassment that was sufficiently severe or pervasive to alter the terms and
conditions of employment and create a discriminatorily abusive working environment.
As a result, because Sullivan has failed to satisfy this fourth element of her prima facie
case for hostile work environment, the Court need not reach the fifth element (employer liability)
and summary judgment is GRANTED in favor of Austal on this claim.
VI.

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

and conditions of her employment" because of her race in violation of Title VII and Section
1981. Austal moves for summary judgment on Sullivan’s disparate treatment claims for failure
to promote.
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

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plaintiff must establish a prima facie case of intentional race discrimination.11 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).
11

"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).

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Sullivan’s failure to promote claims consist of the following: 1) in January 2009 Terry
Anderson was promoted over her to a warehouse management job; 2) on September 1, 2009,
Calvin Lett received a promotion over her; and 3) Austal hired “Mason” in August 2009 as a
Supervisor over Sullivan.12 At the outset, Plaintiff’s failure to promote claims regarding Terry
Anderson and Calvin Lett fail because there is no evidence to contradict Austal’s assertion that
Anderson and Lett are African American. (Doc. 335-10 at 4 -5 at ¶¶9-10 (Decltn. Combs); Doc.
295 at 22 (Exhibit 105-Sealed); Doc. 286-10 at 2 (Sullivan’s 2/19/10 EEOC Charge)). As
African Americans, neither Anderson nor Lett are outside of Sullivan’s protected class in order
for her to establish a prima facie case of failure to promote. Accordingly, Austal’s motion for
summary judgment on Sullivan’s failure to promote claims, relating to Anderson and Lett, is
GRANTED.
Concerning Sullivan’s failure to promote claim that Austal hired “Mason” in August
2009 as a Supervisor instead of her, Sullivan has failed to provide any evidence or information
concerning “Mason” – even any evidence indicating that he is Caucasian and thus outside of her
protected class. Additionally, according to Sullivan’s testimony, the position was a foreman’s
position for logistics for the new “MMF” building.

(Doc. 285-23 (Dep. Sullivan at 46)).

Moreover, the job qualifications included the requirement of being able to “lift 50-75 pounds.
They had to be able to work the laydown yard, the shipping and receiving, and stores, and be
able to supervise and report back to the manager.” (Id. (Dep. Sullivan at 47)). Sullivan testified
12

While Sullivan’s January 31, 2011 Declaration states that in 2008, Mike Leachman was given
a supervisor position over Shipping and Receiving, and if the position had been posted she would have
applied, (Doc. 285-24 at 4 (Decltn. Sullivan)), Sullivan has failed to address this claim in response to
Austal’s motion for summary judgment. Thus, the Court finds that this particular failure to promote
claim, as to Leachman, has been abandoned.

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that she did not complain to anyone at Austal (apart from her co-workers) about the position
which was given to “Mason.” (Doc. 214-1 (Dep. Sullivan at 56-57)). Sullivan’s testimony
indicates further, that she did not even apply for this position because of the weight lifting
requirements “and the laydown yard,. But mainly the weight.” (Doc. 285-23 (Dep. Sullivan at
47)). Finally, when asked about Mason, Sullivan testified that she does not know anything about
his qualifications or work experience. (Id. (Dep. Sullivan at 49)). In sum, the record reveals that
Sullivan has failed to establish her prima facie case of failure to promote as to “Mason.” Thus,
Austal’s motion for summary judgment on this claim is GRANTED.
VII.

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

GRANTED as to Sullivan’s hostile work environment claim; GRANTED as to Sullivan’s
failure to promote claims; GRANTED as to Sullivan’s training claim; and GRANTED as to
Sullivan’s retaliation claim. Sullivan’s punitive damages request is thus MOOT.
DONE and ORDERED this the 29th day of August 2011.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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