1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

FRANKLIN THOMAS, 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. 

189, 190), Plaintiff’s Opposition (Doc. 309), and Defendants’ Reply (Doc. 338). 

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). Plaintiff Franklin Thomas (“Thomas”) asserts claims for hostile work environment based on 

race in violation of Title VII and 42 U.S.C. § 1981. (Doc. 37 at 129-133).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, Thomas alleged a separate claim for retaliation (Doc. 37 at 131-132 at ¶¶ 687-688, 

690-692). Thomas did not address this claims in response to Austal’s motion and moreover, in his 

opposition brief now specifically represents that he “is pursuing claims against Austal for only hostile 

work environment and discrimination on the basis of race in regards to pay and promotion” under Title 

VII and Section 1981. (Doc. 309 at 2 (emphasis added)). Accordingly, the Court construes Thomas’ 

intentional exclusion of his retaliation claim as a concession of that claim. Thus, it is ORDERED that 

Austal’s motion for summary judgment, as to Thomas’ retaliation claim, is GRANTED. Additionally, 

while Thomas 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 (disparate pay and promotion and failure to post job openings) (Doc. 190 at 4, 17-

20). Thomas also addresses these claims even though they were not included in the Third Amended 

(Continued) 

Case 1:08-cv-00155-KD-N Document 376 Filed 05/26/11 Page 1 of 17
2 

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. 190 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). Job classifications within the Fabrication 

Departments include Trade Assistant (trainee position), Apprentice, Welders, Fitters and 

Fabricators. (Id. at 4). 

B. Thomas’ Employment

 Franklin Thomas was hired by (and started work with) Austal on October 23, 2003 as a 

Trades Assistant (“TA”) in the Maintenance Department at the rate of $12/hour. (Doc. 212-1 

(Dep. Thomas at 15, 18-19); Doc. 212-1 at 52-61; Doc. 212-2 at 12 (Decltn. Lindley)). At the 

 

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

that the “parties frame the scope of the litigation at the time the complaint is filed.” Moreover, in Davis v. 

Coca-Cola Bottling Co., Consol., 516 F.3d 955 (11th Cir. 2008), the court highlighted the difficulty in 

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

11th Circuit expects the District Court to “strip the case down and identify each claim and defense.” Id. 

at 982. In an effort to do so the court must rely on the claims asserted in the Third Amended Complaint. 

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

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

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

Further, while Thomas simply states “failure to adequately train” in the Third Amended 

Complaint (Doc. 37 at 132 at ¶695) – yet provides no definite statement concerning same – Thomas did 

not specifically address, with argument or facts, a failure to train claim in response to Austal’s motion for 

summary judgment. As such, the Court construes Thomas’ intentional exclusion of his purported 

training claim as a concession of that claim. Thus, it is ORDERED that Austal’s motion for summary 

judgment, as to Thomas’ training claim, is GRANTED. 

Case 1:08-cv-00155-KD-N Document 376 Filed 05/26/11 Page 2 of 17
3 

time he was hired, Thomas had two (2) years of experience with Bender Shipbuilding as a 

maintenance electrician and repairmen for electrical equipment in the shipyard and buildings, 

and received a high school education and an Associates’ Degree for Electrician from Bishop 

State Community College. (Doc. 286-34 at 5, 13). 

 During his employment, Thomas received nine (9) pay raises dated January 19, 2004 

from $12/hour to $13.50/hour; March 8, 2004 from $13.50/hour to $14.50/hour (“$1.00 basic for 

increased responsibility/job rate”); February 17, 2005 from $14.50/hour to $15/hour (“Franklin 

has made a 100% turnaround”); August 19, 2005 from $15/hour to $15.50/hour; January 6, 2006 

from $15.50/hour to $16.50/hour (“effort/experience, adjusted [ ] with [ ] cost for new hires”); 

May 22, 2006 from $16.50/hour to $18/hour; November 27, 2006 from $18.50/hour to 

$19.75/hour (“effort/competitive to other companies”); July 2, 2007 from $19.75/hour to 

$20/hour (“merit increase”); and June 30, 2008 from $20/hour to $20.60/hour. (Doc. 212-1 at 

52-61; Doc. 295 at 37 (Exhibit 105-Sealed); Doc. 212-2 at 12 (Decltn. Lindley)). 

 Also during his employment, Thomas received four (4) Warnings dated April 20, 2004 

for being tardy five (5) times stating he “needs to break this pattern and get back on track;” July 

6, 2004 for unexcused absences twice, stating he “needs to improve this” because it is grounds 

for termination; August 11, 2004 for unexcused absence, stating that he was advised he would be 

suspended for one day but was out again yet brought doctor’s excuse; and September 29, 2004 

for needing to communicate, noting he should be aware that “my supervisor is not thrilled with 

his work performance” and he did not fill out an equipment repair sheet to show what repairs he 

did during a day. (Doc. 212-3 at 55-58). 

 On July 1, 2009, Thomas was fired for fighting on the job. (Doc. 212-2 at 12 (Decltn. 

Case 1:08-cv-00155-KD-N Document 376 Filed 05/26/11 Page 3 of 17
4 

Lindley); Doc. 212-1 (Dep. Thomas at 15)). 

II. Standard of Review

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

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

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

provides as follows: 

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

genuinely disputed must support the assertion by: 

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

depositions, documents, electronically stored information, affidavits or 

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

admissions, interrogatory answers, or other materials; or 

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

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

evidence to support the fact. 

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

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

in a form that would be admissible in evidence. 

(3) Materials Not Cited. The court need consider only the cited materials, but it 

may consider other materials in the record. 

(4) Affidavits or Declarations. An affidavit or declaration used to support or 

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 

Case 1:08-cv-00155-KD-N Document 376 Filed 05/26/11 Page 4 of 17
5 

affidavits, if any,= which it believes demonstrate the absence of a genuine issue of material fact.@ 

Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). (quoting Celotex Corp. v. 

Catrett, 477 U.S. 317, 323 (1986)). If the nonmoving party fails to make Aa sufficient showing 

on an essential element of her case with respect to which she has the burden of proof,@ the 

moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. AIn reviewing whether 

the nonmoving party has met its burden, the court must stop short of weighing the evidence and 

making credibility determinations of the truth of the matter. Instead, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.@ Tipton v. 

Bergrohr GMBH-Siegen, 965 F.2d 994, 998-999 (11th Cir. 1992), cert. den., 507 U.S. 911 (1993) 

(internal citations and quotations omitted). 

III. Timeliness of Claims

 A 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) 

Case 1:08-cv-00155-KD-N Document 376 Filed 05/26/11 Page 5 of 17
6 

(unpublished). A failure to file a timely charge with the EEOC results in a bar of the claims 

contained in the untimely charge. Id. 

 Thomas signed his EEOC Charge for race discrimination (continuing action) and 

retaliation on November 13, 2006 and it was “received” on November 20, 2006. (Doc. 286-26). 

Calculating from the November 20, 2006 date, Austal contends that only those discriminatory 

acts occurring between May 24, 2006 and November 20, 2006 – within the 180 days prior to 

November 20, 2006 -- are timely. From this, Austal asserts that it is entitled to summary 

judgment on “[a]ll alleged acts” occurring between Thomas’ hire date of October 2003, and May 

24, 2006. (Doc. 190 at 7).3

 

 Thomas 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. 309 at 

13-14 (citing McKenzie v. Citation Corp., LLC, 2007 WL 1424555 (S.D. Ala. 2007)). Thomas 

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 

 3

 While Austal also asserts that Thomas’ claim that George Calkins was hired at a higher hourly 

rate is time-barred, as noted supra footnote 2, Thomas has not alleged disparate pay claims in this case. 

Case 1:08-cv-00155-KD-N Document 376 Filed 05/26/11 Page 6 of 17
7 

Transp., Slip Copy, 2011 WL 1188506, *5 (M.D. Ala. Mar. 30, 2011): 

Unlike claims involving discrete discriminatory acts, hostile environment claims 

may be litigated so long as at least one of the events contributing to the hostile 

environment was presented to the EEOC in a Charge of Discrimination in a 

timely fashion. Indeed, in Morgan, the United States Supreme Court held that 

“consideration of the entire scope of a hostile work environment claim, including 

behavior alleged outside the statutory time period, is permissible for the purposes 

of assessing liability, so long as an act contributing to that hostile environment 

takes place within the statutory time period.” Morgan, 536 U.S. at 106. 

Thomas’ 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. Additionally, Thomas testified that despite the filing of 

his EEOC charge, the racial discrimination “just continued on[.]” (Doc. 285-26 (Dep. Thomas at 

29-30)). Accordingly, Austal’s motion for summary judgment on this hostile work environment 

claim is DENIED. 

IV. 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).4

 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 

 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.

Case 1:08-cv-00155-KD-N Document 376 Filed 05/26/11 Page 7 of 17
8 

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) Thomas’ 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) Thomas makes no allegations and presents no evidence that the 

allegedly hostile environment unreasonably interfered with her ability to work on a day-to-day 

basis; 3) Austal maintained a policy establishing how an employee should report discriminatory 

conduct, but Thomas failed to report certain conduct; and 4) Austal took reasonable preventative 

and corrective/remedial measures to prevent a hostile work environment.

 A. Severe or Pervasive

As to whether the conduct was severe and pervasive, Thomas points to the following 

evidence.5

 Regarding racially and hostile discriminatory comments,6 Thomas heard lead man 

 5 Thomas also relies on the allegations of the other 22 plaintiffs (Doc. 309 at 3-4, 18-19, 22-23) 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 

(Continued) 

Case 1:08-cv-00155-KD-N Document 376 Filed 05/26/11 Page 8 of 17
9 

Michael Bolin say, once, “[w]hen he get home, he was going to beat that nigger ass[]” in his 

office in front of Thomas and another co-worker. (Doc. 212-1 (Dep. Thomas at 55-56, 82)). 

Thomas and the co-worker looked at each other and asked Bolin “not to use that word around us 

no more.” (Id. (Dep. Thomas at 56)). Bolin responded “sorry about that, I wasn’t talking about 

you all[]” and Thomas never heard him made that comment again. (Id. (Dep. Thomas at 56, 82); 

Doc. 285-26 (Dep. Thomas at 65-66)). Thomas did not report Bolin’s comment. (Doc. 285-26 

(Dep. Thomas at 82)). 

Thomas alleges that a Caucasian supervisor called Caucasian co-worker Roy Hall on the 

Austal work radio and stated “could you have one of your monkeys come move this scaffolding 

equipment for me”), which Thomas believed was racial, as referring to African American 

employees. (Doc. 212-1 (Dep. Thomas at 114); Doc. 286-34 at 7; Doc. 285-26 (Dep. Thomas at 

116-117)). At that time, Roy Hall “had all black employees working for him.” (Doc. 212-1 

(Dep. Thomas at 114)). “Everyone on the channel four over the radio heard it[.]” (Id.) When 

Thomas confronted Hall about the comment, Hall acted like he did not know what Thomas was 

 

only considered the evidence of which Wells testified that he was aware. 

6 Thomas alleges that a Caucasian co-worker John Pitts called him “boy.” (Doc. 212-1 (Dep. 

Thomas at 56-57)). Thomas asked Pitts not to call him “boy” again and Pitts did not. (Id.) Thomas did 

not report Pitts’ comment. (Doc. 285-26 (Dep. Thomas at 58, 65)). The word “boy” said to African 

American employees is not always evidence of racial animus -- other factors must be consulted such as 

context, inflection, tone of voice, local custom and historical usage. See, e.g., Ash v. Tyson Foods, Inc., 

546 U.S. 454, 456 (2006). Thomas does not provide any further testimony about the context of the “boy” 

comment. As such, the Court is not satisfied that Thomas has explained the context and usage of the 

“boy” remark made to him, to establish that there is at least an issue of fact as to whether the remark was 

racially motivated. See, e.g., Ash v. Tyson Foods, Inc., 2006 WL 2219749, *2 (11th Cir. Aug. 2, 2006). 

Moreover, this remark was made once to Thomas, by a co-worker. While Thomas contends that he 

frequently heard “boy” by others, his deposition testimony does not validate that claim. (Doc. 285-26 

(Dep. Thomas at 56-57)). 

Case 1:08-cv-00155-KD-N Document 376 Filed 05/26/11 Page 9 of 17
10 

talking about. (Doc. 285-26 (Dep. Thomas at 115)). 

Thomas alleges that in 2005, Caucasian supervisor David Abear directed a racial joke 

towards him “in front of his buddies” (other Caucasian supervisors) saying “hey Frank, I told 

you I’m not a racist, at home I have a color TV[]”); he told the supervisor never to make another 

racial comment to him again and the supervisor said “okay, laughing,” but did not make any 

further such comments to Thomas. (Doc. 286-34 at 8; Doc. 212-1 (Dep. Thomas at 55, 66); Doc. 

285-26 (Dep. Thomas at 54-55, 65)). A day or so later, Thomas reported supervisor Abear’s 

comment to coordinator Robert Shephard, who told him “without no witness, there’s nothing that 

he can do about it.” (Doc. 212-1 (Dep. Thomas at 66); Doc. 285-26 (Dep. Thomas at 66-67)). 

When Abear said the comment, he was surrounded by his “buddies. They was all white.” (Id.) 

Thomas could not recall whether he reported other racially discriminatory and/or hostile 

comments or conduct but testified “it could be more[]” explaining that “for everything that 

happened since I’ve been there...I just can’t remember every single thing happened[.]” (Doc. 

285-26 (Dep. Thomas at 67)). Thomas also testified that he also saw and heard from other 

African-American employees about the racially hostile environment they experienced in other 

places at Austal. (Doc. 285-26 (Dep. Thomas at 60-62, 68)). Thomas, however, did not testify 

as to what he was made aware of by others. 

Moreover, Thomas was subjected to displays and/or the wearing of the Confederate flag 

on t-shirts, helmets, pants pockets, welding shields and on the back window of a vehicle, by “a 

lot of people” at work, including welder Sam Peach. (Doc. 212-1 (Dep. Thomas at 30, 84-86)). 

Thomas did not report that he was uncomfortable with the Caucasian employees displaying 

and/or wearing the Confederate flag imagery. (Id. (Dep. Thomas at 86)). Thomas did not testify 

Case 1:08-cv-00155-KD-N Document 376 Filed 05/26/11 Page 10 of 17
11 

as to the frequency with which he saw the flag imagery. The displays of the Confederate flag 

imagery were not addressed by Austal. 

Further, Thomas saw (or was made aware of) racial epithets in graffiti on bathroom walls 

and stalls. (Doc. 212-1 (Dep. Thomas at 30, 68-70, 75-77); Doc. 285-26 (Dep. Thomas at 68-69, 

71, 74-77, 80-81); Doc. 286-34 at 6-7). The racial graffiti included: “black people only belong 

on cotton fields,” “KKK rules,” “all blacks need to go back to their motherland in Africa,” 

“niggers are hired from the neck down not to think,” “too many niggers in the warehouse,” “see, 

niggers travel in packs just like monkeys,” “White Power” with a drawing of a hooded 

Klansman, “how many niggers do you see around here wearing white hats,” “why don’t niggers 

use aspirin? Because they don’t want to pick cotton out of the top,”7

 and a hangman’s noose 

drawn on the stalls. (Doc. 286-34 at 6-7; Doc. 212-1 (Dep. Thomas at 30, 68-70, 75-77; Doc. 

285-26 (Dep. Thomas at 71, 74-77, 80-81)). Additionally, the racial graffiti included a drawing 

of Thomas with a noose hanging around his neck. (Doc. 286-34 at 7). According to Thomas, the 

first time he saw graffiti, he reported it to Wilbur Lee and cleaners painted over the graffiti on 

the bathroom wall but the graffiti just reappeared and when Thomas asked Lee about it, Lee 

responded there was nothing he could do to stop it. (Doc. 286-34 at 6-7; Doc. 212-1 (Dep. 

Thomas at 72-73)). Thomas reported the graffiti to Charles Stills, and in response the graffiti 

was removed. (Doc. 212-1 (Dep. Thomas at 73)). Thomas also reported the “nigger graffiti” in 

November 2006 to supervisor Chris Robinson, asking him if “they were going to do anything” 

and he replied “there was nothing they could do about it. It seemed to be a never ending battle 

 7

 Myron Barnes and Jerome Pettibone told Thomas about this particular graffiti. (Doc. 285-26 

(Dep. Thomas at 81)). 

Case 1:08-cv-00155-KD-N Document 376 Filed 05/26/11 Page 11 of 17
12 

with nobody caring that this graffiti continued to be all over the bathroom walls, even after they 

were painted over.” (Doc. 286-34 at 7; Doc. 285-26 (Dep. Thomas at 100-101, 103)). 

Additionally, Thomas was aware that a Caucasian security manager took photographs of the 

racial graffiti in the bathrooms and gave them to Austal management. (Doc. 286-34 at 8). 

Moreover, Thomas reported “all the nigger graffiti” to his coordinator Kurk Freeman and his 

supervisor Robert Bechtol during a morning meeting. (Doc. 285-26 (Dep. Thomas at 103-105)). 

On another occasion, Thomas reported some graffiti that used the word “nigger.” (Id. (Dep. 

Thomas at 73-74)). Once, Caucasian supervisor Roy Hall took Thomas into a bathroom stall to 

point out to him graffiti that said “something about dealing with niggers[;]” Hall told Thomas 

“that’s a shame people still think that way.” (Id. (Dep. Thomas at 78-80)). Thomas did not 

report that graffiti. (Id. (Dep. Thomas at 80)). 

Thomas explained that the reason he did not report each instance of graffiti was “because 

of the supervisors – some of those supervisors using the restroom saw them, too, so I didn’t 

report.” (Doc. 212-1 (Dep. Thomas at 78)). “It’s a lot of supervisors saw that [graffiti] on the 

wall.” (Id.) 

The record reveals that starting in August 2007, Austal responded to complaints about the 

graffiti by cleaning the bathrooms and painting black over the graffiti on a regular basis. (Doc. 

285-2 (Dep. Browning at 16, 110; Doc. 212-1 (Dep. Thomas at 70, 75-78)). Nevertheless, the 

painting did not deter the offending scribblers, as the walls would soon be filled again with 

racially offensive graffiti; as noted by Thomas “the only thing that happened was the walls were 

painted and the graffiti reappeared[]” and “it’s just pitiful, repaint the walls and each time anyone 

come out of a stall, they can go check it[.]” (Doc. 285-26 (Dep. Thomas at 108); Doc. 212-1 

Case 1:08-cv-00155-KD-N Document 376 Filed 05/26/11 Page 12 of 17
13 

(Dep. Thomas at 70, 75-78); Doc. 286-34 at 6; 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)). 

Finally, at some point during his employment Thomas completed a questionnaire for 

Austal in which he wrote “will the racism ever stop?” and turned in the form to his supervisor. 

(Doc. 285-26 (Dep. Thomas at 117-119)). 

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

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

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

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

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

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

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

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

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

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

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

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

546. 

 There is sufficient evidence, if believed by a jury, that Thomas subjectively perceived his 

work environment to be racially hostile. Thus, the Court need only determine whether Thomas’ 

perception was objectively reasonable. 

Case 1:08-cv-00155-KD-N Document 376 Filed 05/26/11 Page 13 of 17
14 

When viewing the facts in the light most favorable to Thomas, a reasonable jury could 

not find that the harassing conduct alleged was frequent and severe. According to Thomas, he 

was not regularly subjected to racially discriminatory comments or conduct. While Thomas 

testified that he regularly encountered offensive racial “nigger” graffiti during his employment 

(including a drawing of himself with a hangman’s noose around his neck) in the workplace 

bathrooms, when he reported the graffiti it was painted over. Additionally, while Thomas 

testified that he saw images of the Confederate flag as displayed and/or worn on Caucasian coworkers’ t-shirts, welding shields, etc., he did not testify as to the frequency with which he 

encountered such graffiti and moreover, appeared to focus his exposure to such imagery on one 

Caucasian co-worker’s display of same. 

While much of the repeated conduct may not have been physically threatening, it is not 

unreasonable to infer from Thomas’ allegations that the conduct was racially demeaning, 

humiliating and degrading. McKenzie, 2007 WL 1424555 at *13. Indeed, Thomas testified that 

he felt like he was being judged by the color of his skin and because of that, has missed out on 

life: “[o]ver the years of being subjected to this workplace and dealing with the kind of 

environment that you’re not used to. The company knowing about these situations going on and 

they are not taking care of it the proper way....And a lot you miss out of life, because the way 

people mistreat you and the way you being judged off of your—the color of your skin. You read 

about it, but I ain’t never have to deal with it. This is my first time ever dealing with this type of 

stuff.” (Doc. 285-26 (Dep. Thomas at 107-108)). Thomas also explained in discovery responses 

as follows: “I feel I have suffered emotional damages due to the way I have been treated at 

Austal...I am not accustomed to this type of environment. It is making me angry at work and 

Case 1:08-cv-00155-KD-N Document 376 Filed 05/26/11 Page 14 of 17
15 

giving me lack of concentration. I really don’t enjoy my work anymore. I have trouble sleeping, 

and I have noticed an increase in headaches, I am also short tempered with my family members 

and co-workers.” (Doc. 286-34 at 9). 

Despite Thomas’ testimony, there is no indication in the record that Thomas was exposed 

to regular and/or daily racial comments or conduct (rather, he experienced only a few isolated 

instances of same); that he was exposed to regular and/or daily displays of Confederate imagery; 

and/or that the racial graffiti he regularly encountered in the bathrooms was not painted over by 

Austal when he reported same. At best, Thomas has provided evidence of encountering 

constantly racially offensive graffiti at Austal. However, while he may have regularly 

encountered offensive graffiti, he has not established that any of this repeated conduct was 

severe, physically threatening or that it unreasonably interfered with his job performance. 

Indeed, Thomas received nine (9) pay raises from October 2003-July 2009. See supra. Thus, a 

jury could not reasonably find that the incidents alleged were severe and pervasive.8

 

Eleventh Circuit precedent mandates that courts consider “the totality of the 

circumstances” such that the absence of one factor is not dispositive. See, e.g., Miller, 277 F.3d 

at 1277. In this case, Thomas has not submitted sufficient evidence demonstrating that the 

conduct – apart from the racially offensive graffiti -- was frequent, severe, physically 

threatening, humiliating, demeaning and/or unreasonably interfered with his job. See, e.g., 

Barrow v. Georgia Pacific Corp., 144 Fed. Appx. 54, 57-58 (11th Cir. 2005) (concluding that 

evidence of "displays of the rebel flag on tool boxes and hard hats, the letters ‘KKK’ on a 

 8 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.

Case 1:08-cv-00155-KD-N Document 376 Filed 05/26/11 Page 15 of 17
16 

bathroom wall and on a block-saw console, and a noose in another employee’s locker,’" as well 

as several threats to "kick plaintiff’s ‘black ass’" or threats that if he looked at a white girl he was 

going to get "cut," and the use of racial epithets including "nigger," "boy," and "black boy," 

reflected conduct that was "isolated," "sporadic," and "random" and did not amount to "severe 

and pervasive” harassment). 

While there is “not simply some magic number of racial or ethnic insults” that preclude 

summary judgment, it is repeated incidents of...harassment that continue despite the employee's 

objections [that] are indicative of a hostile work environment.” Miller, 277 F.3d at 1276 (citation 

and quotation omitted). In this instance, Thomas admits that he did not complain about two of 

the only three instances concerning his co-employees offensive behavior (racial comments), 

about any of the Confederate flag imagery, and about some of the racial graffiti. In sum, under 

the totality of the circumstances and considering the allegations in the light most favorable to 

Thomas, he has not produced sufficient evidence – if believed by a jury – to create an issue of 

fact as to whether he was subjected to racial harassment that was sufficiently severe or pervasive 

to alter the terms and conditions of employment and create a discriminatorily abusive working 

environment. 

As a result, because Thomas has failed to satisfy this fourth element of his prima facie 

case for hostile work environment, the Court need not reach the fifth element (employer liability) 

and summary judgment is GRANTED in favor of Austal on this claim. 

V. Conclusion

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

GRANTED as to Thomas’ hostile work environment claims; GRANTED as to Thomas’ 

Case 1:08-cv-00155-KD-N Document 376 Filed 05/26/11 Page 16 of 17
17 

retaliation claim; and GRANTED as to Thomas’ training claim. As such, Thomas’ punitive 

damages request is MOOT. 

DONE and ORDERED this the 26th day of May 2011. 

 /s/ Kristi K. DuBose 

 KRISTI K. DuBOSE 

 UNITED STATES DISTRICT JUDGE 

Case 1:08-cv-00155-KD-N Document 376 Filed 05/26/11 Page 17 of 17