1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JEROME PETTIBONE, et al., )

 Plaintiffs, ) 

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

 )

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

 Defendant. )

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.

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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)).

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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.

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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 173-

174)). 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, 

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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, 

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who told him nothing could be done about the graffiti. (Doc. 285-16 (Dep. Pettibone at 176-

177)). “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 

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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, 188-

190, 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, 252-

253)). 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)

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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. 283-

28; Doc. 285-2 (Dep. Browning at 7-14, 118-120, 124-125); Doc. 284-3 (Dep. Lindley I at 255-

256); 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).

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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 

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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.

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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 

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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 

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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.

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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 antiCase 1:08-cv-00155-KD-N Document 829 Filed 09/04/14 Page 14 of 20
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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 

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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 

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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)

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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).

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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 14-

15). 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.

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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.

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