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

Filing 829

Summary Judgment Order on Remand per 11th Circuit Mandate (docs. 821 and 826), Austal's motion for summary judgment is DENIED as to Pettibone's hostile work environment claim, as set out. Signed by Judge Kristi K. DuBose on 9/3/2014. (cmj)

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

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CIVIL ACTION 08-00155-KD-N

SUMMARY JUDGMENT ORDER ON REMAND
This matter is before the Court on Defendant’s motion for summary judgment (Docs.
175, 176), Plaintiff’s Opposition (Doc. 316), Defendants’ Reply (Doc. 342), and the Eleventh
Circuit’s remand (Doc. 821).
I.

Factual Background1
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. (Doc. 1).
Jerome Pettibone (“Pettibone”) asserts claims for hostile work environment based on race in
violation of Title VII and 42 U.S.C. § 1981. (Doc. 37 at 93-98).2
On May 31, 2011, this Court issued summary judgment in favor of Austal as to
Pettibone’s claims for hostile work environment and retaliation. (Docs. 378, 720). Pettibone’s
summary judgment ruling was appealed (USCA#12-11507-EE) (Doc. 753), and on June 17,
1

At the summary judgment stage, the facts are taken in the light most favorable to the non-movant. Tipton
v. Bergrohr GMBH–Siegen, 965 F.2d 994, 998-999 (11th Cir. 1992). The “facts, as accepted at the summary
judgment stage of the proceedings, may not be the actual facts of the case.” Priester v. City of Riviera Beach, 208
F.3d 919, 925 n. 3 (11th Cir. 2000).
2

All other claims have been previously dismissed, abandoned, or judgment granted for the defendant.

1

2014, the Eleventh Circuit vacated the summary judgment order as to the claim of a racially
hostile work environment. (Doc. 821 at 31). The Eleventh Circuit found that a reasonable jury
could find that Pettibone’s work environment was objectively hostile, and remanded his claims
of a racially hostile work environment with instructions for this Court “to determine whether
Austal is entitled to summary judgment on the ground that it was not directly or vicariously
liable for the harassment or whether the employees’ claims should proceed to trial.” (Id. at 3, 31,
38). The mandate issued August 8, 2014. (Doc. 826).
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. 176 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.

Pettibone’s Employment

Jerome Pettibone was hired on December 13, 2005 and began working for Austal on
January 9, 2006 as a welder in the Aluminum Fabrication Department at the rate of $12/hour.
(Doc. 202-1 (Dep. Pettibone at 35, 37); Doc. 202-1 at 82; Doc. 202-2 at 10 (Decltn. Lindley)).
On April 10, 2009, Pettibone was laid off due to company wide downsizing. (Doc. 202-1 (Dep.
Pettibone at 49); Doc. 202-2 at 10 (Decltn. Lindley)).

2

C.

Austal’s Anti-Harassment & Non-Discrimination Policy

Austal submitted evidence of two (2) anti-harassment and non-discrimination policies: an
“April 2006 Issue F” policy, and a “November 2007” policy. (Doc. 202-2 at 2-3 and note 1
(Decltn. Lindley); Doc. 202-2 at 36-37, 49-51 (the April 2006 Issue F policy and the November
2007 Issue A policy)). However, there were three (3) policies in effect during Pettibone’s
employment: the “November 2005 Issue E”, April 2006, and the November 2007 policies.
The November 2005/April 2006 and November 2007 policies reveal different complaint
procedures for different periods of time. The November 2005 and April 2006 policies “urge”
employees to report complaints to his/her supervisor or, if not comfortable doing so, to the
Departmental Manager:3
Any employee suspecting a violation of this policy, or who in any way feels
uncomfortable with the actions of Company Supervisors, employees or outsiders is
urged to inform his or her Supervisor. If for any reasons 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… Supervisors are required to
report suspected harassment and any allegations of harassment to the Departmental
Manager.
(Doc. 202-2 at 37 and Doc. 283-56 at 25 (emphasis in original)). (Doc. 284-3 (Dep. Lindley4 I at
238-240, 245-246) (testifying that such was the procedure as to the 2005 and 2006 policies, and
confirming that nothing in the policies identifies HR as an avenue for complaints). From
November 2007 forward, employees “should report” to both to the supervisor and the
Department Manager/Coordinator before even being allowed to report to HR:
1.3 Reporting an Incident of Harassment or Workplace Violence
3

Based on the record and as indicated by Austal, the Departmental Managers (or Coordinators) manage
specific departments, such as Aluminum Fabrication, and within those departments, there are Supervisors who
supervise the employees working with said department. (Doc. 283-48 (Austal’s 3/7/07 EEOC Position Statement)).
4

Austal’s Rule 30(b)(6) representative and HR Benefits Coordinator.

3

It is the employee's responsibility to report any incident of harassment or workplace
violence. The employee should report any incident of this nature to his/her supervisor. If
the employee is not comfortable reporting the incident to his/her supervisor you may talk
to the department coordinator or manager. If you need to talk with someone after you
have completed both steps, you may contact the Human Resources Department. Any
reported allegations of harassment or workplace violence will be Investigated
confidentially and promptly.
(Doc. 202-2 at 50 (emphasis added)). No evidence has been submitted to the Court of Pettibone
having signed the November 2005, April 2006 or November 2007 policies. The evidence
submitted indicates only that Pettibone reviewed a policy following his 2006 orientation. (Doc.
202-1 (Dep. Pettibone at 62, 68)).
Regarding racially and hostile discriminatory comments, Pettibone alleges that he once
was told that his supervisor Mike Waters said “you can get a lot of free slavery….a lot of hard
work with cheap slave labor done.” (Doc. 202-1 (Dep. Pettibone at 173)). Pettibone did not hear
the statement and does not know if anyone reported it to Austal. (Id. (Dep. Pettibone at 173174)). Pettibone was offended by the comment which he perceived to be discriminatory. (Id.)
Pettibone was told that supervisor Tim Clements walked up and kicked African American
co-worker Jermaine Roberson when he was working, and also kicked African American coworker Earaton Adams when he was working. (Doc. 285-16 (Dep. Pettibone at 270-273)).
Pettibone was subjected to displays of the Confederate flag on three (3) Caucasian coworkers’ t-shirts, hard hats and lunch/tool/welding boxes, which he finds offensive and
suggestive of violence directed to African Americans. (Doc. 202-1 (Dep. Pettibone at 161-163,
165, 194-195, 289); Doc. 285-16 (Dep. Pettibone at 196-197, 288-290)). Pettibone and other
African American co-workers complained on multiple occasions about the flag imagery, to
supervisors. (Doc. 202-1 (Dep. Pettibone at 161-163, 165); Doc. 285-16 (Dep. Pettibone at 164,
4

196)). When Pettibone complained to “[a]ny supervisor I saw[]” the response he received was
“[t]hat’s his shirt, he bought it.” (Doc. 202-1 (Dep. Pettibone at 162-163)). Pettibone also
complained directly to a co-worker about his shirt, when he wore it on one occasion, and in
response, “he cracked jokes.”

(Id. (Dep. Pettibone at 163, 165)).

Pettibone (and others)

photographed the co-worker wearing the shirt. (Id.) Austal did nothing in response to the
complaints about the Confederate flag imagery.
Pettibone saw racial epithets in graffiti on bathroom walls and stalls. (Doc. 202-1 (Dep.
Pettibone at 175, 184-187, 189, 234); Doc. 285-16 (Dep. Pettibone at 129, 177, 183, 185-188,
234, 295-300)). The racial graffiti included: “how many niggers do you see around here wearing
white hats,” “White Power” with a picture of a hooded Klansman, “see, niggers travel in packs
just like rats,” “why don’t niggers use aspirin, because they don’t want to pick the cotton off the
top,” “KKK,” “how do you keep a nigger out of your back yard, hang one in the front,” “how do
you keep 10 niggers from raping your wife, give them a basketball,” “the only people wearing
union shirts are the lazy-ass niggers,” “KKK is getting bigger,” “watch your ass. Oh, you better
be glad you’re not a nigger,” “niggers,” “white is right,” “Jerome [Pettibone] is a snitch, blast his
ass if he’s a rat-a-tat-at,” “hey, nigger,” a drawing of a hangman stick figure, the letters “KKK”
drawn next to a Nazi sign, the words “White Power” drawn next to a Nazi sign, and a drawing of
African American co-worker Tesha Hollis with the words “I’m not a full-fledged white man until
I split the raw, black oak” written underneath the drawing. (Id.) Pettibone reported the graffiti to
supervisor Jeremy Gainous: “I told him they need to do something about the graffiti on the
bathroom wall[]” and in response, Gainous told him “[t]here’s nothing he can do about it.”
(Doc. 202-1 (Dep. Pettibone at 175)). Pettibone also complained to supervisor Yancy Allen,
5

who told him nothing could be done about the graffiti. (Doc. 285-16 (Dep. Pettibone at 176177)). “I complained about all of it. I didn’t like what I saw.” (Doc. 202-1 (Dep. Pettibone at
187, 189)). Pettibone took photographs of all of the graffiti he saw. (Id. (Dep. Pettibone at
190)). Pettibone testified that when the graffiti of the picture of Tesha Hollis was reported,
Austal removed it the same day. (Id. (Dep. Pettibone at 179-180)).
Austal has presented one example of evidence of its response to Pettibone’s complaints
about the graffiti, citing Pettibone’s deposition testimony that once, when he was with others
who reported graffiti, Austal removed it the same day. (Doc. 176 at 13 (citing Doc. 202-1 (Dep.
Pettibone at 179-180)).

Apart from that, Austal alleges that initially they counseled their

supervisors regarding the graffiti. (See, e.g., Doc. 202-3 (Dep. Combs at 111, 126) (Austal
“discussed it with our teams and told them graffiti of any kind, racial, sexual, or any kind is not
tolerated[,]” adding it was discussed “with all the supervisors” and that the supervisors “have
been told to discuss it with all of their people[]”). However, Combs does not really know if that
ever occurred, noting that he saw graffiti in mid-2009. Thereafter, in August 2007, Austal
responded to complaints by painting everything black. (Doc. 202-1 (Dep. Pettibone at 184, 187,
190, 193, 235); Doc. 285-2 (Dep. Browning at 16, 110). Yet the graffiti continued as the paint
transformed the bathrooms into a chalkboard making the graffiti show up better. (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)).
There were no investigations, and no policy was implemented as to precisely how to
document the graffiti and/or how to prevent it. (Doc. 285-2 (Dep. Browning at 16, 110); (Doc.
284-3 (Dep. Lindley I at 196); (Doc. 284-7 (Dep. Friedlieb I at 49, 52, 82, 84, 86)). Austal’s
6

CEO testified that there were no discussions with HR about prevention of the graffiti apart from
painting everything black. (Doc. 285-2 (Dep. Browning at 110, 113-114, 117)). Austal’s HR
Coordinator testified that there has been a constant problem with racially offensive and
threatening graffiti since 2005, and while senior management and HR are aware of it, it was still
ongoing as of 2009. (Doc. 284-4 (Dep. Lindley II at 86-89, 96, 101-102, 112-114, 123-124, 188190, 195-196, 202-203); Doc. 284-5 (Dep. Lindley III at 254). HR Manager Carver testified that
he does not recall any investigation into the graffiti or Austal issuing any memo or statement
about it to employees. (Doc. 284-10 (Dep. Carver II at 62-63, 65-66, 70)). Carver also does not
recall whether between 2004-2007 the issue of racial graffiti was ever formally addressed by
Austal or whether Austal took any action to determine who was responsible for the graffiti. (Id.)
According to Carver, “there’s really no excuse….that I didn’t send out a document to everybody
and say, look this is not tolerated, I don’t care what you say, there’s really no excuse for it. I’ll
admit that.” (Id. (Dep. Carver II at 81-82)).
Pettibone discovered a one noose hanging in the Austal breakroom in May 2008 (“I just
stopped. (Doc. 202-1 (Dep. Pettibone at 135-136, 235, 282); Doc. 285-16 (Dep. Pettibone at
239-240, 252-253)). Pettibone photographed the noose and reported the noose to his supervisors,
after which, Austal then photographed him. (Doc. 285-16 (Dep. Pettibone at 129-135, 243, 252253)). Pettibone alleges that African American co-workers accused him of hanging the noose.
Pettibone talked with Jeff O’Dell in HR and O’Dell accused him of being responsible for the
noose to “bolster the lawsuit.” (Id. (Dep. Pettibone at 282-283); Doc. 285-16 (Dep. Pettibone at
96, 282)).5
5

Pettibone wrote a May 5, 2008 letter to Austal notifying Austal that a co-worker approached him and

(Continued)
7

Concerning the May 2008 noose, (Docs. 283-24, 283-25, 284-2), the City of Mobile was
alerted to its presence through an article in the Press Register, and while Austal did not issue a
memo, statement or email to its employees about the noose, Austal investigated and offered a
reward for information. (Doc. 202-3 (Dep. Pate at 152); Doc. 283-26; Doc. 283-27; Doc. 28328; Doc. 285-2 (Dep. Browning at 7-14, 118-120, 124-125); Doc. 284-3 (Dep. Lindley I at 255256); Doc. 284-5 at 59 (Dep. O’Dell at 79)).

The noose was also reported to Security,

Supervisors, HR and Senior Management; Security and O’Dell in HR conducted an investigation
but were unable to determine who was responsible. (Doc. 284-2; Doc. 284-4 (Dep. Lindley II at
157); Doc. 284-5 at 59 (Dep. O’Dell at 79); Doc. 284-8 (Dep. Friedlieb II at 145)). However,
Austal’s investigation consisted primarily of investigating the African American employees who
found (and reported) the noose as suspects, with a focus on co-worker (and co-plaintiff) Beverly
Thomas as having staged the incident. (Doc. 284-2; Doc. 284-8 (Dep. Friedlieb II at 163, 168,
170, 183-185, 191-192)).
Pettibone saw a second noose hanging on “block fifteen” on Austal property; it was taken
down but not taken to “the front office” at Austal. (Doc. 285-16 (Dep. Pettibone at 245)).
Pettibone testified that African American co-worker Earaton Adams told him that he saw
Caucasian employee David Hebert showing “Dickey,” a Caucasian supervisor, how to make a
noose and that when Earaton Adams returned, the noose was hanging from the ceiling in that
area of the workplace. (Id. (Dep. Pettibone at 245-246)).
Pettibone also saw a stick figurine of a hangman with a noose around its neck and the

asked him to lie for the company for a reward – to say he hung the noose. (Doc. 283-30). HR Director Jeff O’Dell
responded to Pettibone’s letter saying he had investigated Pettibone’s claims. (Doc. 283-31).

8

word “niggers” written on its chest; he took a photograph of it and took the figurine and
photograph to HR. (Doc. 202-1 (Dep. Pettibone at 286-288)). Pettibone never received a
response from HR about any investigation. (Id. (Dep. Pettibone at 288)).
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). 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 “initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of ‘the
9

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 “a 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. “In 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.

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).6

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

6

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

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).
The first three (3) prima facie elements of a hostile work environment are satisfied and
not disputed by the parties. However, as to the remaining elements, Austal contends that: 1)
Pettibone’s evidence of sporadic and isolated incidents of racially hostile comments, conduct and
graffiti during the time she was employed do not meet the severe or pervasive threshold; 2)
Pettibone 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 Pettibone 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

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
11

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 Pettibone subjectively perceived his
work environment to be racially hostile.
As to the fourth element, the objective severity of the harassment, as established by the
Eleventh Circuit in its remand:
The record also presents a genuine dispute of material facts that Pettibone’s work
environment was objectively hostile. Pettibone worked for Austal for over three years,
during which he saw racist graffiti in the bathroom on multiple occasions, saw
Confederate flags displayed by multiple coworkers “all through the building,” and saw a
drawing of a hangman with the caption “niggers.” Pettibone was one of the employees
who discovered the noose in the breakroom, and his coworkers accused him of hanging
it. He also heard secondhand about other nooses and racial slurs. One of the slurs was
made by his supervisor, who had said, “[Y]ou can get a lot of free slavery.... A lot of hard
work with cheap slave labor done.” And he heard about another white supervisor kicking
two black employees.
Pettibone raises a disputed issue that the harassment he experienced was frequent and
severe. Although Austal regularly removed the racist graffiti, he saw it frequently. He
also frequently saw coworkers wearing the Confederate flag. The noose that he
discovered and the stick figure with the noose and the caption “niggers” was severe,
especially because he saw them both firsthand. And the slur by his supervisor, although
not directed toward Pettibone, related directly to work at Austal by black employees. A
reasonable jury could find that his workplace was objectively hostile.
(Doc. 821 at 19-20).
B.

Employer Liability- Faragher/Ellerth Affirmative Defense

With the fourth element satisfied, this Court turns to the fifth element: “…the
employer[]…[Austal] is responsible for the hostile work environment under…a theory of
12

vicarious or direct liability[]”7 unless Austal can avail itself of the Faragher/Ellerth affirmative
defense.
In Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742 (1998), the 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. But 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/Ellerth affirmative
defense. For an employer to avail itself of this defense and be found not liable, “[b]oth elements
must be satisfied…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) (emphasis
added) (holding that factual issues existed regarding employer’s complaint procedure and
employee’s use of it, precluding summary judgment on Faragher/Ellerth). If, however, neither
element is satisfied, the employer is liable for the harassment. See supra. See also Joens v. John
Morrell & Co., 243 F.Supp.2d 920, 933 (N.D. Iowa 2003) (providing a helpful flow chart).
7

Miller, 277 F.3d at 1278.

13

Austal’s liability is automatic if a supervisor’s harassment culminated in a tangible
employment action as to Pettibone (e.g., discharge, demotion, undesirable reassignment). There
is no dispute that Pettibone was laid off in April 2009. (Doc. 202-1 (Dep. Pettibone at 49)). In
the operative complaint, Pettibone alleged that he was retaliated against after complaining of
racially discriminatory conduct as he was demoted to lower job assignments. (Doc. 37 at 93-98).
Nevertheless, while there is evidence of supervisor harassment, on summary judgment Pettibone
submitted no evidence of any harassment by a supervisor connected to and/or culminating in a
tangible employment action (including his lay off). Additionally, Pettibone does not allege as
such on summary judgment. Moreover, this Court previously concluded that Pettibone waived
his retaliation claim, and that ruling was not vacated by the Eleventh Circuit. Thus, there is no
evidence before the Court showing a causal relationship between Pettibone’s lay off (or other
event) and any alleged racial harassment by a supervisor, and as such, no evidence of a tangible
employment action on summary judgment. See, e.g., Otu v. Papa John’s USA, Inc., 400 F.
Supp. 2d 1315, 1328 (N.D. Ga. 2005) (discussing a similar situation where a plaintiff failed to
show the causal relationship on summary judgment).
When there is no evidence that a harassing supervisor took a tangible employment action
against an employee, courts assess whether the harassment is nevertheless severe or pervasive
enough to constitute a hostile work environment. Joens, 243 F.Supp.2d at 933. If yes, as is the
case here (see supra), the employer is vicariously liable for a supervisor’s harassment unless the
employer can prove both elements of the Faragher/Ellerth affirmative defense. Id.
First, for “prevention,” there is no uniform test for determining whether an employer's
policy demonstrates that it exercised reasonable care, and the mere existence of a formal anti14

harassment policy does not satisfy this first prong. See, e.g. Frederick, 246 F.3d at 1313 (noting
that the employer failed to establish that its policy contained reasonable complaint procedures);
Dinkins v. Charoen Pokphand USA, Inc., 133 F. Supp. 2d 1237, 1251 (M.D. Ala. 2001)
(concluding that the employer failed to establish the affirmative defense that it was diligent in
preventing and correcting harassment, and that complaining employees had not taken advantage
of opportunities for redress provided by employer). An employer's policy fulfills its “prevent
harassment” obligation if the employer promulgates a policy that is “comprehensive, well-known
to employees, vigorously enforced, and provides alternate avenues of redress[;] and the policy
must not be administered “in bad faith” or be otherwise “defective or dysfunctional.” Dinkins,
133 F. Supp. 2d at 1251 (citing Farley v. American Cast Iron Pipe Co., 115 F.3d 1548, 1554 (11th
Cir. 1997) and Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1298 (11th Cir. 2000)). “A
policy is ‘defective’ if those responsible for its enforcement lack training and knowledge
sufficient to recognize, prevent and correct workplace discrimination.” Id. Essentially then, an
employer can establish that it exercised reasonable care to prevent harassment by showing that it
promulgated and effectively disseminated a clear anti-harassment policy with complaint
procedures to its employees, see Faragher, 524 U.S. at 807-808 and Ellerth, 524 U.S. at 765, so
long as the complaint procedures “meet the minimum requirements for the Faragher affirmative
defense…[and do] not require…the employee to complain to the offending supervisor or through
the supervisor’s chain of command and…provide[] multiple avenues of lodging a complaint to
assessable, designated representatives.” Madray, 208 F.3d at 1299 (determining the policy was
sufficient “because the procedures did not require that the employee complain to the offending
supervisor or through the supervisor's chain of command and the procedures provided multiple
15

avenues of lodging a complaint to assessable, designated representatives[]”). See also e.g.,
Olson v. Lowe’s Home Ctrs. Inc., 130 Fed. Appx. 380, 389 (11th Cir. 2005) (finding satisfaction
of the first prong as the policies enabled employees to bypass harassing supervisors and provided
several different avenues for employees to report harassment); Reyna v. ConAgra Foods, Inc.,
506 F. Supp. 2d 1363, 1375 (M.D. Ga. 2007) (holding that material issues of fact, as to whether
employer took reasonable care to prevent and properly correct harassment, precluded summary
judgment for employer, based on existence of procedures for addressing discrimination issues
not utilized by claimants).

This “requires…a clear and known policy against workplace

harassment…[including] permit[ting] employees to bypass supervisors and retain some vestige
of anonymity.” Bury v. Sky Chefs, 2011 WL 197383, *6 (S.D. Fla. Jan. 20, 2011) (defining the
first prong of Faragher/Ellerth). Inherent defects exist when a policy’s complaint procedures do
not “meet the minimum requirements” for the Faragher affirmative defense: provide employees
“multiple avenues of lodging a complaint to assessable, designated representatives” outside of
the supervisory chain of command (do not require an employee complain to the offending
supervisor or through the supervisor's chain of command). Madray, 208 F.3d at 1299 (emphasis
added). Moreover, “a policy is [considered] ‘defective’ if those responsible for its enforcement
lack training and knowledge sufficient to recognize, prevent, and correct workplace
discrimination.” Dinkins, 133 F. Supp. 2d at 1251.
Concerning the second prong of “prevention” -- whether the employer took reasonable
care to “correct promptly” any harassment -- “the employer's notice of the harassment is of
paramount importance [because] if the employer had notice of the harassment...then it is liable
unless it took prompt corrective action.” Madray, 208 F.3d at 1299 (citing Dees v. Johnson
16

Controls World Services, 168 F.3d 417, 422 (11th Cir. 1999)). An employer is directly liable for
co-worker harassment if the employer knew or should have known of the 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).

“Actual notice is established by proof that

management knew….constructive notice will be found where the harassment was so severe and
pervasive that management should have known of it.”8 Miller, 277 F.3d at 1278. “This inquiry
is facilitated by the identification of the ‘appropriate Company representative’ to whom
employees should register their complaints” in the employer’s policy. Madray, 208 F.3d at
1299-1300. Once it is determined that the employer had adequate notice, whether the employer
took timely corrective action depends upon whether it responded in a reasonably prompt manner
to the employee’s harassment complaint. See, e.g., Frederick, 246 F.3d at 1316. Thus, when the
employer had notice is key “to determine the alacrity of its response[;]” the employer is liable
unless it took “prompt corrective action.” Madray, 208 F.3d at 1299; Dees, 168 F.3d at 422. See
also e.g., Coates v, Sundor Brands, Inc., 164 F.3d 1361, 1364 (11th Cir. 1999) (noting that the
appropriate inquiry at this stage is to ask is what measures an employer (in that case via an HR
Manager) reasonably believed had been taken to address the problem).
Second, courts assess whether the employee unreasonably failed to take advantage of any
preventative or corrective opportunities provided by the employer to avoid harm.9 Joens, 243

8

For constructive notice, courts also consider: 1) the remoteness of the location of the harassment as
compared to the location of management; 2) whether the harassment occurs intermittently over a long period of
time; 3) whether the victims were employed on a part-time or full-time basis; and 4) whether there were only a few,
discrete instances of harassment. See, e.g., Miller, 277 F.3d at 1278; Allen, 121 F.3d at 647.
9

Austal references Pettibone’s failure to report each and every single instance of harassment as a failure to
fulfill this policy reporting procedure. (Doc. 176 at 13-14). Austal then cites Faragher as follows: “Pettibone’s
failure to utilize a preventive or corrective opportunity provided by Austal precludes Austal from being held

(Continued)
17

F.Supp.2d at 933. “[W]hile proof that an employee failed to fulfill the corresponding obligation
of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any
complaint procedure provided by the employer, demonstration of such failure will normally
suffice to satisfy the employer's burden under the second element of the [affirmative] defense.”
Madray, 208 F.3d at 1301 (citing Faragher, 524 at 807-808 and Ellerth, 524 U.S. at 765).
However, “employees of such companies who believe they are victims of harassment need not
be concerned with whether they pursued their complaints far enough up the company ladder.”
Breda, 222 F.3d at 890 (explaining that the question of whether an employee followed the
procedures established in the company's policy in a reasonable manner is an issue of fact to be
determined by a jury).

“In defining the contours of what it means to reasonably use the

complaint procedures and, thereby, properly report…harassment,” the Eleventh Circuit has
identified criteria that “must be satisfied[:]” 1) the employee must have complained to the
appropriate person; and 2) if yes, the employee’s conversations with such person must be
sufficient to place the employer on notice. Olson, 130 Fed. Appx. at 389-390 (citing Madray,
208 F.3d at 1300, Breda, 222 F.3d at 889 and Coates, 164 F.3d at 1364).
Concerning co-workers, an employer is liable for co-worker harassment if the employer
knew (actual notice) or should have known (constructive notice) of the harassing conduct but
failed to take prompt remedial action. See, e.g., Miller, 277 F.3d at 1278; Breda, 222 F.3d at
889.

Once notice is established, a plaintiff must show that the employer “failed to take

vicariously liable of the alleged actions of its employees.” (Id.) However, Faragher does not state as such.
Faragher provides: “[i]f the plaintiff unreasonably failed to avail herself of the employer's preventive or remedial
apparatus, she should not recover damages that could have been avoided if she had done so. Faragher, 524 U.S. at
807 (emphasis added).

18

immediate and appropriate action.” Watson v. Blue Circle, Inc., 324 F.3d 1252, 1259 (11th Cir.
2003). See also Frederick, 246 F.3d at 1314; Minix v. Jeld-Wen, Inc., 237 Fed. Appx. 578, 583
(11th Cir. 2007).

The action must be “reasonably likely to prevent the misconduct from

recurring.” See, e.g., Kilgore v. Thompson & Brock Mgt., Inc., 93 F.3d 752, 754 (11th Cir.
1996). The employer’s action must be “effective action in order to exempt an employer from
liability[]” Saville v. Houston Cty. Healthcare Auth., 852 F. Supp. 1512, 1528 (M.D. Ala. 1994),
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).
Even though it bears the burden of proof, Austal’s motion minimally addresses the fifth
element of employer liability and the related Faragher/Ellerth affirmative defense.

Austal

submitted evidence (some of which appears irrelevant) that it characterizes as examples of
“responses” taken, in general, to racial/harassment incidents during its history. (Doc. 176 at 1415). Regardless, factual issues exist for element five, including whether Austal’s response to
complaints was adequate. In sum, the Court finds that Pettibone has submitted sufficient
evidence to establish that genuine issues of material fact exist questioning Austal’s ability to
shield itself with Faragher/Ellerth. Accordingly, Austal’s motion as to Pettibone’s hostile work
environment claim is DENIED.

19

IV.

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

as to Pettibone’s hostile work environment claim.10
DONE and ORDERED this the 3rd day of September 2014.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

10

Pettibone seeks an award of punitive damages against Austal. It is ORDERED that Austal’s motion for
summary judgment regarding Pettibone’s punitive damages claim is DENIED at this time.

20