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

Filing 834

Summary Judgment Order on Remand per 11th Circuit Mandate (docs. 821 and 826), Austal's motion for summary judgment is DENIED as to Williams' 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
FREDERICK WILLIAMS, 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 (Doc.
200), Plaintiff’s Opposition (Doc. 310), Defendant’s Reply (Doc. 328), 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).
Frederick Williams (“Williams”) asserts claims for hostile work environment based on race, in
violation of Title VII and 42 U.S.C. § 1981. (Doc. 37 at 137-142).2
On September 6, 2011, this Court issued summary judgment in favor of Austal as to
Williams’ claims for hostile work environment, retaliation, discriminatory promotion and
discriminatory discipline, and mooted his punitive damages request.

(Docs. 435, 720).

Williams’ summary judgment ruling was appealed (USCA#12-11507-EE) (Doc. 753), and on
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

June 17, 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 Williams’ 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. 200-1 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.

Williams’ Employment

Frederick Williams began working at Austal on January 9, 2006, as a Welder in the
Aluminum Department at the rate of $13.50/hour. (Doc. 295 at 41 (Exhibit 105-Sealed); Doc.
215-1 (Dep. Williams at 13-14); Doc. 215-1 at 59; Doc. 215-2 at 12 (Decltn. Lindley)).
Williams testified that in March 2007, he resigned claiming that he was constructively
discharged because the Austal environment was too hostile due to racial discrimination. (Doc.
215-1 (Dep. Williams at 37); (Doc. 285-28 (Dep. Williams at 15-16, 22)). Austal contends that
Williams resigned. (Doc. 215-2 at 12 (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. 215-2 at 2-3 and note 1
(Decltn. Lindley); Doc. 215-2 at 36-37, 50 (the April 2006 Issue F policy and the November
2007 Issue A policy)).

However, there were two (2) policies in effect during Williams’

employment: “November 2005 Issue E” and April 2006 policies. The November 2007 policy
was not in effect while Williams was employed.
The November 2005/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. 215-2 at 37; 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). No evidence
has been submitted to the Court of Williams having signed both of these policies. The evidence
submitted indicates only that Williams signed a policy during his orientation. (Doc. 215-1 (Dep.
Williams at 26)).
Williams testified that he understood the complaint procedure at Austal was to report up
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

the chain of command, to his supervisor, as follows: “if you have any harassment problems, take
it to your supervisor.” (Doc. 215-1 (Dep. Williams at 26, 28-29)). “You go through your
supervisor first. Your supervisor takes anything to your coordinator. Your coordinator in turn
takes it to HR. And if it goes any further, HR then sets up the meeting or whatever to whoever it
is that you need to speak to[]” but to follow Austal’s procedure “you have to go to your
supervisor[]” and if not comfortable doing that, report to the departmental manager. (Id. (Dep.
Williams at 100-101)).
Regarding racially and hostile discriminatory comments, Williams alleges that once,
some time after November 13, 2006 (when he signed his EEOC Charge), his Coordinator Scott
Pearson (Caucasian) “got in my face, less than an inch from my lips, screaming and hollering at
me, telling me that he wasn’t a goddam racist[.]” (Doc. 215-1 (Dep. Williams at 33-34, 82)).
Williams reported the incident to HR later that day. (Doc. 285-28 (Dep. Williams at 34-37)).
Additionally, Williams saw one (1) Caucasian co-worker wear a t-shirt (more than once)
which displayed the Confederate flag, photographed that co-worker, and reported the flag t-shirt
to his supervisor Chris Robinson who “didn’t say or do anything[]” in response. (Doc. 215-1
(Dep. Williams at 97, 101-102); Doc. 285-28 (Dep. Williams at 98-99, 101-103); Doc. 283-15).
Moreover, Williams saw racial graffiti in the bathroom walls and stalls at Austal. (Doc.
285-28 (Dep. Williams at 17-23, 80-81, 85-86, 88-103); Doc. 283-14). The racial graffiti
included: “why don’t niggers use aspirin because the don’t want to pick the cotton out of the
top,” “how many niggers do you see around here with white hats,” “White Power” with a picture
of a hooded Klansman, “KKK,” “see, niggers travel in packs just like monkeys,” a swastika, and
“how many niggers do you see around here wearing white hats.” (Doc. 215-1 (Dep. Williams at
4

94); Doc. 285-28 (Dep. Williams at 20, 88-95)). Williams reported the graffiti to his supervisor
Chris Robinson and HR within two (2) weeks of working at Austal. (Doc. 285-28 (Dep.
Williams at 19-20). HR (per Andrew Carver) told him that he would “check into it.” (Id.)
Robinson told Williams that “it’s always been like that and that if I didn’t like it to quit[]” and
subsequently, just “did nothing.” (Doc. 215-1 (Dep. Williams at 89, 94-95)). Robinson also told
Williams to stop using the bathroom. (Id.) Williams photographed some of the graffiti and
showed it to his supervisor Robinson, who did not respond or take any action. (Doc. 285-28
(Dep. Williams at 90-93)). Williams complained about the racial graffiti to Coordinator Scott
Pearson, HR (Andrew Carver and Jeff O’Dell), as well as supervisor Robinson. (Id. (Dep.
Williams at 22-23, 83, 99-103)). Austal did not take any action to remove the graffiti in response
to his complaints. (Id. (Dep. Williams at 20-22, 83, 88)).
Further, Williams witnessed his Caucasian supervisor Robinson write “porch monkeys”
on a wall of one of the ships at Austal; Williams questioned him about it and Robinson sanded it
off the ship. (Doc. 215-1 (Dep. Williams at 17, 51-52)). Some time later, Williams reported the
incident to HR. (Doc. 285-28 (Dep. Williams at 19)).
While there is evidence of Williams’ complaints about harassment, Confederate flag
imagery, and racial graffiti/imagery in the bathrooms, Austal submitted no evidence of its
response to his complaints while he was employed. Rather, Austal submitted evidence with
regard to responses it took, in general, to racial/harassment complaints during its history, and
primarily related to a time after Williams was no longer employed at Austal.
II.

Standard of Review
“The court shall grant summary judgment if the movant shows that there is no genuine
5

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
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
6

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.

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

severe or pervasive to alter the conditions of employment and create an abusive working
environment. See, e.g., Freeman v. City of Riverdale, 330 Fed. Appx. 863, 865 (11th Cir. 2009).5
To establish a prima facie case of hostile work environment and/or racial harassment under
Section 1981, 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).

5

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

7

The first three (3) prima facie elements of a hostile work environment are satisfied and
not disputed by the parties.

However, as to remaining elements, Austal contends that: 1)

Williams’ 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)
Williams 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 Williams 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
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
8

546. There is sufficient evidence, if believed by a jury, that Williams 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 presents a genuine dispute of material facts that Williams’s work environment
was objectively hostile. Williams worked for Austal for about a year, during which no
one ever “verbally” said anything racist to him and no Caucasian employee ever used the
slur “nigger” around him. But he saw one coworker wear a shirt with a Confederate flag
and regularly saw racist graffiti in the men’s restroom. He reported the racist graffiti to
his supervisor, who told Williams that “it’s always been like that and if [he] didn’t like it
[he could] quit.” Williams was working on part of a ship with his supervisor, who carved
the slur “porch monkeys” into the aluminum; Williams “questioned” his supervisor about
the slur, and the supervisor then “sanded it off.” And on the day that Williams quit his job
at Austal, which was after he had filed his discrimination claim, his supervisor “got in
[his] face, less than an inch from [his] lips, screaming and hollering” and told him that
“he wasn’t a goddamn racist.”
Williams raises a disputed issue that the harassment he experienced was frequent and
severe. Although his exposure to the Confederate flag was limited, he saw the racist
graffiti in the men’s restroom regularly. And like Bumpers, his supervisor humiliated him
with a racial slur. Although his supervisor’s carving was an isolated act, it was severe. A
reasonable jury could find that Williams’s work environment was objectively hostile.
(Doc. 821 at 22-23).
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
vicarious or direct liability[]”6 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.

6

Miller, 277 F.3d at 1278.

9

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).
Austal’s liability is automatic if a supervisor’s harassment culminated in a tangible
employment action as to Williams (e.g., discharge, demotion, undesirable reassignment). There
is no dispute that Williams resigned from Austal in June 2007. Austal asserts that Williams
voluntarily resigned. In the operative complaint, Williams alleged that he was retaliated against
10

after complaining of racially discriminatory conduct and was treated differently from Caucasian
co-workers with regard to pay and promotions, and that he was constructively discharged. (Doc.
37 at 137-142). Williams testified that he left Austal because of the racially discriminatory
hostile environment. (Doc. 215-1 (Dep. Williams at 37); (Doc. 285-28 (Dep. Williams at 15-16,
22)). However, in response to Austal’s request for summary judgment Williams does not rely on
this allegation or support it with any further evidence.
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 antiharassment 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,
11

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
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
12

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
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.”7 Miller, 277 F.3d at 1278. “This inquiry

7

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.

13

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.8 Joens, 243
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.”
8

Austal references Williams’ failure to report each and every single instance of harassment as a failure to
fulfill this policy reporting procedure. (Doc. 200-1 at 13). Austal then cites Faragher as follows: “Williams’ failure
to utilize a preventive or corrective opportunity provided by Austal precludes Austal from being held 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).

14

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

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).
15

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. 200-1 at
13-14). Regardless, factual issues exist for element five, including whether Austal’s response to
complaints was adequate.

In sum, the Court finds that Williams 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 Williams’ hostile work
environment claim is DENIED.
IV.

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

as to Williams’ hostile work environment claim.9
DONE and ORDERED this the 3rd day of September 2014.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

9

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

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