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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

CHARLES STILLS, et al., ) 

 Plaintiffs, ) v. ) CIVIL ACTION 08-00155-KD-N 

 ) 

AUSTAL, U.S.A., L.L.C., ) 

 Defendant. ) 

 ORDER 

This matter is before the Court on Defendant’s motion for summary judgment (Docs. 

193, 195, 210), Plaintiff’s Opposition (Doc. 259) and Defendant’s Reply (Doc. 327). 

I. Factual Background

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

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

 (Doc. 

1). Charles Stills (“Stills”) asserts claims for hostile work environment based on race in 

violation of 42 U.S.C. § 1981. (Doc. 37 at 43-48).2

 1

 While initiated as a purported class action, this is no longer a class action case. (Doc. 293). 

Additionally, some of the Plaintiffs allege gender and disability discrimination in addition to asserting 

Title VII claims.

2

 Originally, Stills alleged a separate claim for retaliation (Doc. 37 at 45-47 at ¶¶196, 201-202, 

204-205) and discriminatory pay (Id. at 46 at ¶197). Stills did not address these claims in response to 

Austal’s motion and moreover, in his opposition brief now specifically represents that he “is pursuing 

claims against Austal for racial harassment” under Section 1981. (Doc. 259 at 2). Accordingly, the Court 

construes Stills’ intentional exclusion of his retaliation and pay claims, as a concession of these claims. 

Thus, it is ORDERED that Austal’s motion for summary judgment, as to Stills’ retaliation and pay 

claims, is GRANTED.

 Additionally, while Stills initially alleged disparate impact claims against Austal, said claims 

have been dismissed from this litigation. (Doc. 366). 

Moreover, Austal has moved for summary judgment on claims not included in the Third 

Amended Complaint (Doc. 195 at 4, 15-18), including that Stills was denied an opportunity to become 

(Continued) 

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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. 195 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. Stills’ Employment

 Charles Stills began working at Austal on December 9, 2002, as a Warehouse Supervisor 

in the Warehouse Department at the rate of $13/hour. (Doc. 295 at 36 (Exhibit 105-Sealed); 

Doc. 210-1 (Dep. Stills at 68-69); Doc. 210-1 at 52). During his employment, Stills transitioned 

from an hourly employee to a salaried employee: he started at $13/hour and a few months later 

became a salaried employee at $34,500/year effective January 20, 2003, which then increased 

July 1, 2005 from $34,000 to $37,000/year, and again from $37,000 to $40,000/year on 

December 7, 2005, with his highest pay reaching $42,000/year. (Doc. 285-22 (Dep. Stills at 88-

 

warehouse coordinator and was offered the position of Site Security Supervisor but did not receive the 

job. In Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1357 (11th Cir. 1998), the Court held that the 

“parties frame the scope of the litigation at the time the complaint is filed.” Moreover, in Davis v. CocaCola Bottling Co., Consol., 516 F.3d 955 (11th Cir. 2008), the court highlighted the difficulty in appellate 

review of voluminous pleadings involving multiple defendants. In so doing it is clear that the 11th 

Circuit expects the District Court to “strip the case down and identify each claim and defense.” Id. at 982. 

In an effort to do so the court must rely on the claims asserted in the Third Amended Complaint. Thus, 

claims asserted in depositions and not included in the complaint have not been considered and will not be 

addressed. See Smith v. Books-A-Million, 398 Fed. Appx. 437 (11th Cir. 2010) (Claims not included in 

the complaint were not required to be considered by the District Court).

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90);3

 Doc. 210-1 at 54-58; Doc. 210-2 (Decltn. Lindley at 11)). From 2003-2004, Stills left 

Austal’s employment as he was active duty with the Marine Corps in Iraq; he returned to work 

for Austal in 2004. (Doc. 285-22 (Dep. Stills at 71, 74)). When he returned, he was placed back 

in the Warehouse. (Id. (Dep. Stills at 80, 88)). At some point later, Stills became aware that 

Austal had posted his job on-line on the website www.monster.com and told him they “wanted 

someone like me, but not like me”; according to Stills, he was constructively discharged from 

Austal on March 15, 2006 (Austal contends that Stills resigned). (Doc. 285-22 (Dep. Stills at 12-

16, 34-35, 37, 93); Doc. 286-33 at 2 (Decltn. Stills); Doc. 210-2 at 11 (Decltn. Lindley)). 

II. Standard of Review

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

dispute as to any material fact and the movant is entitled to judgment as a matter of law.@ FED.

R. CIV. P. 56(a) (Dec. 2010). The recently amended Rule 56(c) governs Procedures, and 

provides as follows: 

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is 

genuinely disputed must support the assertion by: 

(A) citing to particular parts of materials in the record, including 

depositions, documents, electronically stored information, affidavits or 

declarations, stipulations (including those made for purposes of the motion only), 

admissions, interrogatory answers, or other materials; or 

(B) showing that the materials cited do not establish the absence or 

presence of a genuine dispute, or that an adverse party cannot produce admissible 

evidence to support the fact. 

(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party 

may object that the material cited to support or dispute a fact cannot be presented 

 3 While Stills actually testified he initially earned $14/hour, the record reveals his starting pay 

was $13/hour. 

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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 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). 

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III. Austal’s “Reply” Claims

Austal asserts new “untimely” Section 1981 arguments in its Reply. (Doc. 327 at 2-3). 

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

arguments raised for the first time on Reply. As set forth recently by this Court in New 

Hampshire Ins. Co. v. Wiregrass Const. Co., Slip Copy, 2011 WL 206191, *2 at note 2 (S.D. 

Ala. Jan. 20, 2011): 

See Park City Water Authority v. North Fork Apartments, L.P., 2009 WL 

4898354 at *1 n. 2 (S.D.Ala.2009) (citing cases from over 40 districts applying 

the rule in 2009 alone). The Eleventh Circuit follows a similar rule. E.g., Herring 

v. Secretary, Department of Corrections, 397 F.3d 1338, 1342 (11th Cir.2005) 

(“As we have repeatedly admonished, arguments raised for the first time in a 

reply brief are not properly before a reviewing court.”) (internal quotes omitted). 

The Court has identified some of the reasons supporting the rule. “In order to 

avoid a scenario in which endless sur-reply briefs are filed, or the Court is forced 

to perform a litigant's research for it on a key legal issue because that party has 

not had an opportunity to be heard, or a movant is incentivized to save his best 

arguments for his reply brief so as to secure a tactical advantage based on the 

nonmovant's lack of opportunity to rebut them, this Court does not consider 

arguments raised for the first time in a reply brief.” Hardy v. Jim Walter Homes, 

Inc., 2008 WL 906455 at *8 (S.D.Ala.2008). 

 In sum, because Austal failed to raise these arguments in its motion for summary 

judgment, they 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”). 

IV. 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 

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environment. See, e.g., Freeman v. City of Riverdale, 330 Fed. Appx. 863, 865 (11th Cir. 2009).4

 

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). 

 Austal contends that: 1) Stills’ 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) Stills 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 Stills failed to report certain conduct; and 4) Austal took reasonable preventative and 

corrective/remedial measures to prevent a hostile work environment. 

 4

 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.

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 A. Severe or Pervasive5

 

 To be actionable as severe or pervasive, the harassment “must result in both an 

environment that a reasonable person would find hostile or abusive and an environment that the 

victim subjectively perceive[s]...to be abusive.” Miller, 277 F.3d at 1276 (internal citation and 

quotation marks omitted). In other words, the severe or pervasive element has an objective and 

subjective component. McCann, 526 F.3d at 1378. To determine the objective severity of the 

harassment, courts look at the totality of the circumstances and consider: 1) the frequency of the 

discriminatory conduct; 2) the severity of the conduct; 3) whether the conduct is physically 

threatening or humiliating, or a mere offensive utterance; and 4) whether the conduct 

unreasonably interferes with an employee's job performance. Reeves, 395 Fed. Appx. at 546. 

See also Faragher v. City of Boca Raton, 524 U.S. 775, 787-788 (1998); Allen v. Tyson Foods, 

121 F.3d 642, 647 (11th Cir. 1997) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). 

“The conduct is considered cumulatively instead of in isolation.” Reeves, 395 Fed. Appx. at 

546.

 After consideration of the evidence presented by Stills, the Court finds that there is 

sufficient evidence, if believed by a jury, that Stills subjectively perceived his work environment 

 5 Stills also relies on the allegations of the other 22 plaintiffs (Doc. 259 at 3-5, 15, 17-19, 21-22), 

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 Stills testified that he was aware. 

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to be racially hostile. Moreover, the Court finds when viewing the facts in the light most 

favorable to Stills, that there is an issue of fact whether the harassment was severe and 

pervasive.6

 The Court also finds that there are issues of fact remaining as to whether Austal is 

responsible for the alleged hostile environment. 

Accordingly, summary judgment is DENIED on this claim. 

V. Conclusion

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

as to Stills’ hostile work environment claim under Section 1981; GRANTED as to Stills’ 

disparate pay claim; and GRANTED as to Stills’ retaliation claim. Stills’ punitive damages 

request is thus CARRIED TO TRIAL. 

DONE and ORDERED this the 7th day of September 2011.

 /s/ Kristi K. DuBose 

 KRISTI K. DuBOSE 

 UNITED STATES DISTRICT JUDGE 

 6 The Court has considered the evidence presented by each plaintiff in isolation. Accordingly, on 

the claim of hostile work environment there are different determinations amongst plaintiffs based on the 

specificity and quantity of evidence presented by each plaintiff.

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