Adams et al v. Austal, U.S.A., L.L.C.
ORDER granting in part and denying in part 194 Motion for Summary Judgment. It is ORDERED that Austal's partial motion for summary judgment is DENIED as to Roberson's hostile work environment claims; GRANTED as to Roberson's dispar ate pay claims; and GRANTED as to Roberson's retaliation claim, constructive discharge, denial of equipment (welding machine), training, and evaluations claims. Roberson's punitive damages request is CARRIED TO TRIAL. Signed by Judge Kristi K. DuBose on 9/23/2011. copies to parties. (sdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
JERMAINE ROBERSON, et al.,
AUSTAL, U.S.A., L.L.C.,
CIVIL ACTION 08-00155-KD-N
This matter is before the Court on Defendant’s partial1 motion for summary judgment
(Docs. 194, 196, 203), Plaintiff’s Opposition (Doc. 314) and Defendant’s Reply (Doc. 339).
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.2 (Doc.
1). Jermaine Roberson (“Roberson”) asserts claims for hostile work environment and
discrimination (pay and promotions) based on race in violation of Title VII and 42 U.S.C. §
1981. (Doc. 37 at 109-116).3
Austal did not specifically move for summary judgment on Roberson’s failure to promote claim
(Doc. 37 at 112 at ¶¶572, 575). But even if Austal’s motion could be construed otherwise, Austal did not
adequately address Roberson’s contention relating to the promotion received by Chris Johnson.
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.
Originally, Roberson alleged a separate claim for retaliation (Doc. 37 at 113-115 at ¶¶ 578, 586587, 589-591), constructive discharge (Id. at 109-110, 113-114 at ¶563, 582-583), denial of equipment
(his own welding machine) (Id. at 112 at ¶572), training (Id. at 112-113, 115 at ¶¶574, 579-581, 594) and
evaluations (Id. at 113 at ¶¶579-580). Roberson did not address these claims in response to Austal’s
motion and moreover, in his opposition brief Roberson now specifically represents that he “is pursuing
claims against Austal for only hostile work environment and discrimination on the basis of race in regards
Defendant Austal USA (“Austal”) is an Australian shipbuilding company dedicated to the
design and construction of customized aluminum commercial and military vessels, located in
(Doc. 196 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).
Roberson began working for Austal on July 5, 2006 as a Fitter Trades Assistant
(“Fitter/TA”) in the Aluminum Fabrication Department, at the rate of $14/hour. (Doc. 295 at 31
(Exhibit 105-Sealed); Doc. 203-1 (Dep. Roberson at 54-56, 194); (Doc. 203-1 at 71, 73); Doc.
203-2 (Decltn. Lindley at 10)). Roberson received three (3) pay raises dated November 1, 2006
(to $14.50/hour), July 2, 2007 (to $15.50/hour) and October 9, 2007 (to $16.50/hour). (Doc. 295
at 31 (Exhibit 105-Sealed); Doc. 203-1 at 71, 73)). Roberson was employed at Austal until
March 12, 2008; Roberson contends that he was constructively discharged, whereas Austal
asserts that his FMLA leave expired without him returning to work. (Id.; Doc. 203-1 (Dep.
to pay and promotions” under Title VII and Section 1981. (Doc. 314 at 2 (emphasis added)).
Accordingly, the Court construes Roberson’s intentional exclusion of his retaliation, constructive
discharge, denial of equipment (his own welding machine), training and evaluations claims as a
concession of these claims. Thus, it is ORDERED that Austal’s motion for summary judgment, as to
Roberson’s retaliation constructive discharge, denial of equipment (his own welding machine), training
and evaluations claims, is GRANTED.
Moreover, any and all disparate impact claims against Austal have been dismissed from this
litigation. (Doc. 366).
Roberson at 65-66, 68, 73, 75, 277-278); Doc. 339-1).
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.@ 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 non-movant 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).
Timeliness of Claims
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)
(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.
Roberson signed his EEOC Charge (for race, retaliation and “continuing action”) on
February 26, 20074 and it was “received” on February 28, 2007. (Doc. 203-3). Calculating from
the February 28, 2007 date, Austal contends that “[a]ll alleged acts” occurring between
Roberson’s hire date of July 5, 2006 and September 1, 20065 (180 days prior to February 28,
2007), are time barred under Title VII. (Doc. 196 at 7).
Roberson contends that Austal’s interpretation is incorrect and contrary to well
established 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. 314 at 14-15 (citing McKenzie v. Citation Corp., LLC, 2007 WL 1424555 (S.D. Ala.
2007)). Roberson 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):
The EEOC Charge is signed 2/26/06, but this appears to be a scrivener’s error as the allegations
encompass a timeframe after February 2006 and the “latest date discrimination took place” is defined as
02/26/07. (Doc. 203-3 at 1). Also, the EEOC’s stamp bears the year 2007.
Austal actually uses the date of August 30, 2006; however, 180 days prior to the date the EEOC
charge was “received’ (the filing date), is September 1, 2006.
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.
Roberson’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.
Concerning all other “any alleged acts” for which Austal has moved for summary
judgment – disparate treatment (starting pay and pay raises) – the Court finds as follows. As for
Roberson’s pay claim, this claim is tied to Roberson’s starting salary when hired ($14/hour) and
the pay raises that he received (or did not) thereafter, as compared to that of certain Caucasian
employees, and thus is framed by Roberson as a discriminatory compensation decision claim
(i.e., paychecks received as a periodic implementation of a previously made discriminatory
employment decision).6 Accordingly, Roberson’s Title VII pay claims are not untimely and
Austal’s motion for summary judgment based on the untimeliness of this claim is DENIED.
As set forth in 29 U.S.C.A. § 626(d)(3): “….an unlawful practice occurs, with respect to
discrimination in compensation in violation of this Act, when a discriminatory compensation decision or
other practice is adopted, when a person becomes subject to a discriminatory compensation decision or
other practice, or when a person is affected by application of a discriminatory compensation decision or
other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in
part from such a decision or other practice.”
Austal’s “Reply” Claims
Austal asserts new arguments in its Reply concerning Roberson’s failure to promote
claims (claims for which Austal did not move for summary judgment). (Doc. 339 at 13-14). The
Court will not consider these “new” claims. Austal cannot assert new allegations or arguments
raised for the first time on Reply. As set forth recently 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
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”).
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) (unpublished).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) (unpublished); 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) Roberson’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) Roberson makes no allegations and presents no evidence that
the allegedly hostile environment unreasonably interfered with her ability to work on a day-today basis; 3) Austal maintained a policy establishing how an employee should report
discriminatory conduct, but Roberson failed to report certain conduct; and 4) Austal took
reasonable preventative and corrective/remedial measures to prevent a hostile work environment.
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.
Severe or Pervasive8
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
After consideration of the evidence presented by Roberson, the Court finds that there is
sufficient evidence, if believed by a jury, that Roberson subjectively perceived his work
Roberson also relies on the allegations of the other 22 plaintiffs (Doc. 314 at 2-4, 17, 20-22, 2425, 28, 32) 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 Roberson testified that he was aware.
environment to be racially hostile. Moreover, the Court finds when viewing the facts in the light
most favorable to Roberson, that there is an issue of fact whether the harassment was severe and
pervasive. The Court also finds that there are issues of fact remaining as to whether Austal is
responsible for the alleged hostile environment. Accordingly, Austal’s motion for summary
judgment is DENIED on this claim.
Section 1981/Title VII – Disparate Treatment (Race)
Roberson 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.
Specifically, Roberson alleges that: 1) Caucasian employees who held the same initial job,
Trades Assistant – namely Chris Johnson, Kenneth Allison, Michael Scarborough and William
Rowell, were hired at a hiring starting hourly wage; and 2) Caucasian employees received raises
sooner than he did and in higher amounts, including Chris Johnson, Kenneth Allison and
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
plaintiff must establish a prima facie case of intentional race discrimination.9 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.
In order to establish a prima facie case of disparate pay, Roberson must establish that he
held a position “similar to that of a higher paid employee who is not a member of [her] protected
class.” Crawford v. Carroll, 529 F.3d 961, 974-975 (11th Cir. 2008) (citing Meeks v. Computer
Assocs. Int'l, 15 F.3d 1013, 1019 (11th Cir. 1994)). The employee whom the plaintiff identifies
as a comparator “must be similarly situated in all relevant respects.” Wilson v. B/E Aerospace,
Inc., 376 F.3d 1079, 1091 (11th Cir. 2004). See also e.g., Drake-Sims v. Burlington Coat Factory
Warehouse of Ala., Inc., 330 Fed. Appx. 795, 803 (11th Cir. 2009) (unpublished). It is necessary
that a comparator must be “nearly identical” to the plaintiff “to prevent courts from secondguessing a reasonable decision by the employer.” Wilson, 376 F.3d at 1091. See also e.g., Head
v. Pitts Enterp., Inc., Slip Copy, 2010 WL 2773376, *13 (M.D. Ala. Jul. 14, 2010); Drake-Sims,
380 Fed. Appx. at 803; Sylva-Kalonji v. Board of School Comm’rs of Mobile Cty., 2009 WL
1418808, *5-6 (S.D. Ala. May 20, 2009); Hill v. Emory Univ., 346 Fed. Appx. 390, 395 (11th
Cir. 2009); Beard v. 84 Lumber Co., 206 Fed. Appx. 852, 857 (11th Cir. 2006) (finding the
plaintiff and a proposed comparator had different numbers of years of experiences such that they
"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,
were not similarly situated in all relevant respects).
Roberson does not submit any evidence or argument regarding subjective similarity of
the comparators, such as experience, education, previous salary, or salary demand. Rather,
Roberson relies on Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1529 (11th Cir.
1992) (finding that the plaintiff established a prima facie case of sex discrimination under Title
VII by demonstrating that she is female and that the job she occupied was similar to higher
paying jobs occupied by males) and Mulhall v. Advance Sec., Inc., 19 F.3d 586 (11th Cir. 1994),
and argues that he meets his burden of producing evidence of a similarly situated comparator by
pointing to Caucasian employees who held jobs with identical titles (i.e., Trades Assistant in the
Aluminum Fabrication Department).
However, as the Eleventh Circuit has counseled “[t]he methods of presenting a prima
facie case are not fixed; they are flexible and depend to a large degree upon the employment
situation.” Wilson, 376 F.3d at 1087. In more recent Eleventh Circuit precedent, we have seen
the application of this flexibility. Specifically, the Court has pointed to the absence of relevant
similarities amongst comparators, outside of job similarity, and held that plaintiff failed to meet
his/her prima facie case. For example, in Cooper, 390 F.3d 695, the Court determined that the
comparators for purpose of a disparate pay claim were not appropriate, i.e. similarly situated,
when the plaintiff did not establish: 1) “that the proposed comparators had similar levels of
experience or education” id. at 745; 2) “similar levels of seniority” id. at 743; and 3) similar
disciplinary records, id. at 741.
When the Eleventh Circuit has reached beyond job similarities in its similarly situated
analyses, unrebutted evidence was in the record to show that there existed a relevant factor (e.g.,
experience, education, starting pay demand) which rendered the comparators dissimilar. For
example, in Mack v. ST Mobile Aerospace Eng., Inc., 195 Fed. Appx. 829 (11th Cir. 2006)
(unpublished), the court stated “[w]e affirm the court's entry of summary judgment as to this
claim because MAE produced uncontroverted evidence that Frye and Wicks were paid more than
Mack because each had specialized experience and training in aeronautics and avionics, while
Mack had only general electronic training. Consequently, Mack failed to show that they were
‘similarly situated in all relevant respects.’” Id. at 843. Thus, although the burden of production
at the prima facie stage does not shift to the defendant to produce any evidence, the failure of the
defendant to point to other traits that are “relevant” to the particular employment situation
dictates that the Court should look strictly to job similarities. Therefore, the Court will first
examine the record to determine if Roberson has submitted evidence of basic job similarities,
and if so, whether there is evidence that the comparators are dissimilar in other relevant respects.
Starting Pay: Initial Hourly Wage
Roberson alleges that Caucasian co-workers Chris Johnson, Kenneth Allison, Michael
Scarborough and William Rowell, were hired in as Trades Assistant in the Aluminum
Fabrication Department at a starting hourly wage that was higher than his initial starting hourly
wage ($14/hour). (Doc. 203-1 (Dep. Roberson at 103-105); Doc. 285-20 (Dep. Roberson at 227228)). As noted supra, Roberson was hired on July 5, 2006, as a Fitter/Trades Assistant in the
Aluminum Fabrication Department, at the initial starting wage rate of $14/hour. (Doc. 295 at 31
(Exhibit 105-Sealed)). Roberson contends that “white Austal employees with similar or identical
job titles or tasks earned more.” (Doc. 314 at 38).
Roberson’s initial pay rate claim regarding Allison (hired on 7/31/06), Johnson (hired on
2/27/06), Scarborough (hired on 7/24/06) and Rowell (hired on 5/7/07),10 is not supported by the
evidence. Specifically, Roberson cites Exhibit 106 as evidence of starting pay for comparators
Allison, Scarborough and Rowell. A review of Exhibit 106 (which purports to be a summary of
pay data contained in Exhibit 105) shows no support for Roberson’s assertion of starting pay for
these comparators. Additionally, Roberson has previously explained that Exhibit 106 is a
summary of pay data contained in Exhibit 105.11 (Doc. 353 at 17). Exhibit 105 does not indicate
these proposed comparators’ starting pay.
Roberson has submitted no other evidence establishing that Allison was initially hired at
the rate of $12.50/hour. (Doc. 314 at 9). The record reveals also that Scarborough was initially
hired at a starting wage of $13.50/hour (Doc. 339-6 at 13 (Employment Application)), and thus,
he was hired at a lower starting pay rate than that of Roberson ($.50/hour lower). And the only
evidence Roberson cites to, for the claim that Johnson was hired at the initially starting pay rate
of $14/hour, is Roberson’s own deposition testimony, which is based on inadmissible hearsay.
(Doc. 203-1 (Dep. Roberson at 190); Doc. 285-20 (Dep. Roberson at 228)). In fact, the only
proposed comparator for which the evidence definitively establishes an initial starting rate higher
than that of Roberson is Rowell, who was hired at a starting rate of $15/hour. (Doc. 339-6 at 9
(Doc. 295 at 19, 32, 33 (Exhibit 105-Sealed)).
As noted in the Order regarding Earaton Adams (Doc. 364 at 19 at note 14), the Court
previously ruled that Doc. 286-3 (Exhibit 105 (Sealed)), also filed as Doc. 295, can be reduced to a form
admissible at trial and thus Austal’s objection to Exhibit 105 was overruled; however, to the extent
Exhibit 106 has no foundation in Exhibit 105, Austal’s objection was sustained.
However, there is no evidence that any of the proposed comparators were hired for the
same initial starting job position of Fitter/Trades Assistant in the Aluminum Fabrication
Department. Rather, the record reveals that while Allison “applied for a Trades Assistant/Welder
position” (Doc. 339-6 (Decltn. Combs at 4)), the only position indicated in connection with
Allison is the job title of Fitter A-Class in Fabrication12 and there is no information as to his
starting position. (Doc. 295 at 2 (Exhibit 105-Sealed)). Similarly, there is no evidence that
Scarborough was hired as a Trades Assistant; instead, the record reveals only that he is presently
a Fitter A-Class in Fabrication. (Id. at 33 (Exhibit 105-Sealed)). Likewise, Rowell was initially
hired as a Trades Assistant in HVAC (not Fabrication).13 (Id. at 32). Moreover, there is no
evidence that Johnson was initially hired as a Trades Assistant; the record reveals only that he is
presently a Fitter in the Fabrication. (Id. at 19). And no evidence has been presented that
Roberson’s starting position as Trades Assistant in the Aluminum Fabrication Department, and a
Fitter A-Class in the Fabrication Department, a Fitter in the Fabrication Department, and a
Trades Assistant in the HVAC Department, are substantially similar jobs.
It cannot be said then, that any of these proposed comparators are substantially similar to
Roberson in terms of job duties, particularly as Roberson has failed to present any evidence of
the similarities of the duties for these job positions in different departments. This lack of
evidence undermines Roberson’s starting hourly rate claims as to Allison, Johnson, Scarborough
and Rowell, as within each department pay rates are based on a number of factors including
The record reveals that there are two (2) Fabrication Departments (Aluminum Fabrication and
Aluminum Components) at Austal. (Doc. 283-48 at 4 (Austal’s 3/7/07 EEOC Statement)).
The record reveals that the HVAC job positions are within the Fit Out Department. (Doc.
283-48 at 4 (Austal’s 3/7/07 EEOC Statement)).
experience (at Austal or elsewhere), education/training, productivity (quantity and quality), and
attendance and “[t]he difference in pay scales is well known to the employees” as some
employees have transferred from one department to another to qualify for higher pay or different
working conditions. (Doc. 283-38 at 4-5, 11 (Austal’s 3/3/07 EEOC Statement)).
“Austal established different job titles for its employees – such as Trades Assistant, Fitter,
Welder, etc. – due to the different skill sets, training, experience, and qualifications needed to
perform the job duties that are unique to each job title.” (Doc. 339-6 (Decltn. Combs at 3)
(emphasis added)). Even when the threshold focus is only on job similarity, Roberson must still
establish basic job similarities between his job and that of his purportedly higher paid
comparators. Roberson has failed to do this because he “relies merely on a comparison of
generic job titles [and inaccurately so relies at times] and points to…no evidence regarding the
actual job functions and the skill and effort required to perform those functions.” See, e.g.,
Hooper v. Total System Servs., Inc., 2011 WL 2604752, *8 (M.D. Ga. Jun. 30, 2011). See also
e.g., Mulhall, 19 F.3d at 590 (finding that a plaintiff must show “equal work on jobs the
performance of which requires equal skill, effort, and responsibility”). In sum, Roberson has
not established what he asserts is the only requirement -- “job similarity.” Accordingly, Austal’s
motion for summary judgment on Roberson’s starting pay rates claims as compared to Johnson,
Allison, Scarborough and Rowell, is GRANTED.
Roberson alleges that Caucasian co-workers received raises sooner than he did, and in
higher amounts, including Chris Johnson, Kenneth Allison and William Rowell. Specifically,
Roberson alleges that he only received a $.50/hour raise “[w]hen everybody else got $2.00 [per
hour] raise.” (Doc. 203-1 (Dep. Roberson at 160, 190, 226); Doc. 285-20 (Dep. Roberson at
161-162)). Roberson complained to supervisor Guyette, who responded “it was up to Scott
[Pearson].” (Id. (Dep. Roberson at 162-163)). Roberson asked Guyette to talk to Pearson and he
said he would “see what he can do” and Roberson “[n]ever heard anything” except Pearson
told him “that’s all I’m going to get right now.” (Id. (Dep. Roberson at 163)). On another
occasion, Roberson assets that he realized that Chris Johnson was making $17/hour when he was
only making $14.50/hour; thus, he complained to his supervisor Wescovich and coordinator
Kevin Lewis, who both in response, “started laughing.” (Id. (Dep. Roberson at 165-168)).
However, Roberson testified as well, “[t]he money didn’t mean anything to me. It was about the
learning.” (Id. (Dep. Roberson at 168)).
As detailed supra, Roberson has submitted no evidence that these proposed comparators
were hired at the same time for the same position in the same department yet received raises
sooner than he did and in higher amounts (as measured from their initial starting pay rates).
Accordingly, Austal’s motion for summary judgment on Roberson’s disparate pay claim
concerning pay raises is GRANTED.
Roberson 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 Roberson’s punitive
damages claim is DENIED as his request for punitive damages is CARRIED TO TRIAL.
Accordingly, it is ORDERED that Austal’s partial14 motion for summary judgment is
DENIED as to Roberson’s hostile work environment claims; GRANTED as to Roberson’s
disparate pay claims; and GRANTED as to Roberson’s retaliation claim, constructive discharge,
denial of equipment (welding machine), training, and evaluations claims. Roberson’s punitive
damages request is CARRIED TO TRIAL.
DONE and ORDERED this the 23rd day of September 2011.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
See supra Footnote 1.
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