1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

FREDERICK CARTER, 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. 

177, 201, 216), Plaintiff’s Opposition (Doc. 312), and Defendants’ Reply (348); and Defendant’s 

Motion to Strike (Doc. 347) and Plaintiff’s opposition thereto (Doc. 353). 

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 Frederick Carter (“Carter”) asserts claims for hostile work environment and 

disparate treatment (promotion discrimination) based on race, in violation of 42 U.S.C. § 1981 

and Title VII. (Doc. 37 at 59-64).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 and Section 1981 claims.

2 Originally, Carter alleged a separate claim for retaliation, (Doc. 37 at 61, 63-64 at ¶¶284, 294, 

295, 297, 298-299). Carter also alleged failure to adequately train. (Id. at 64 at ¶302). Carter now 

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 promotions” under Section 1981 and Title VII. 

(Doc. 312 at 2 (emphasis added)). Accordingly, the Court construes Carter’s intentional exclusion of his 

retaliation and failure to adequately train claims, as concessions of these claims. Thus, it is ORDERED

that Austal’s motion for summary judgment as to Carter’s retaliation and training claims, is GRANTED. 

Additionally, while Austal contends that Carter abandoned his disparate treatment claims concerning 

(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. 201 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). The Operations Division includes several other 

departments such as Purchasing; the Warehouse Department falls under the Purchasing 

Department. (Id.) 

B. Carter’s Employment

 Frederick Carter was hired to work for Austal in late January 2003, and began working 

 

evaluations and discipline (Doc. 348 at 2), Carter did not allege such claims in the Third Amended 

Complaint. As such, Austal’s motion, to the extent it seeks summary judgment on these claims, is 

MOOT. Moreover, while Carter initially alleged disparate impact claims against Austal, said claims 

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

Further, in his opposition brief Carter alleges a new disparate pay claim (higher starting hourly 

wages) (Doc. 312 at 8). Carter did not allege such a claim in the Third Amended Complaint. As such, 

Carter cannot assert this new disparate pay claim on summary judgment. 

Finally, while Carter did allege a disparate pay claim for pay cuts in conjunction with transfers to 

departments (Doc. 37 at 62 at ¶291) -- he “was told that if he wanted to advance and change departments 

he would have to take a pay cut...white employees Chris Knight, Rachel Sullivan, Nathaniel Freeman, 

and Derrick Harvard all changed departments without taking pay cuts[]” --- Carter has abandoned this 

claim on summary judgment. Notably, Carter specifies in his opposition brief that he is pursuing a claim 

for disparate treatment in regard to pay citing paragraphs 286 and 290 and his “statement of facts above” 

(excluding the class action paragraphs cited) of the Third Amended Complaint. (Doc. 312 at 36). Neither 

cited paragraphs nor his statement of facts discuss pay cuts tied to transfers. Carter also does not discuss 

this claim in his opposition brief. Thus, it is ORDERED that Austal’s motion for summary judgment as 

to Carter’s disparate pay claim under both Title VII and Section 1981 for pay cuts tied to department 

transfers, is GRANTED. 

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for Austal as a Storekeeper (clerk) in the Warehouse Department at the rate of $9/hour. (Doc. 

216-1 (Dep. Carter at 75-76); Doc. 216-2 at 7 (Decltn. Lindley); (Doc. 295 at 7 (Exhibit 105-

Sealed); Doc. 216-1 at 48). Carter was “on probation” for the first 12 weeks. (Doc. 285-8 (Dep. 

Carter at 76)). While employed at Austal, Carter received pay raises dated March 10, 2003 (from 

$9/hour to $11.50/hour “as per our original agreement with Mr. Carter we will increase pay on a 

performance basis for the 1st 90 days of employment”); April 28, 2003 (from $11.50/hour to 

$12/hour); July 21, 2003 (from $12/hour to $13.50/hour); October 13, 2003 (from $13.50/hour to 

$15.50 hour as “temporary raise while performing duties as warehouse/supervisor only. This 

raise may be rescinded after”); August 19, 2005 (from $14.50/hour to $15/hour); May 22, 2006 

(from $15/hour to $15.50/hour); January 3, 2007 (from $15.50/hour to $16/hour); March 21, 

2007 (a raise to $17/hour in conjunction with being given the management position of Shipping 

and Receiving Supervisor, “performance review will be conducted after 90 day probationary 

period”); July 2, 2007 (from $17/hour to $18.50/hour); November 5, 2007 (from $18.50/hour to 

$19/hour, “no back pay”); February 11, 2008 (from $19/hour to $20/hour); and August 30, 2008 

(from $20/hour to $22/hour). (Doc. 216-1 at 50-53, 55-57, 59, 61-62; Doc. 295 at 7 (Exhibit 

105-Sealed)). Notably, on October 13, 2003, Carter was temporarily made Warehouse 

Supervisor; and effective March 26, 2007, Carter was promoted to Shipping and Receiving 

Supervisor.3

 (Doc. 216-1 at 52, 59); Doc. 216-2 at 7 (Decltn. Lindley); Doc. 285-8 (Dep. Carter 

at 101-102)). On October 22, 2008, Carter was terminated for “insufficient performance of 

duties.” (Doc. 216-1 (Dep. Carter at 11); Doc. 216-2 at 7 (Decltn. Lindley); Doc. 216-3 at 2). 

 3

 Carter received this promotion with a pay raise after his EEOC Charge was filed. (Doc. 285-5 

(Dep. Carter at 101-102)).

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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 

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

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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. Title VII

 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); Jordan 

v. City of Montgomery, 2008 WL 2529573, *1 (11th Cir. Jun. 26, 2008). A failure to file a 

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timely charge with the EEOC results in a bar of the claims contained in the untimely charge. Id. 

 Carter started working at Austal in January 2003, and he signed his EEOC Charge on 

November 13, 2006 and it was “received” on November 20, 2006. (Doc. 216-3 at 14-16). 

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

discriminatory acts” occurring between May 24, 2006 and November 20, 2006 – the 180 days 

prior to November 20, 2006 -- are timely. Austal asserts that “[a]ll alleged acts occurring 

between Carter’s hire date of January 2003, and the beginning of the statutory period date of 

May 24, 2006, are time-barred under Title VII. Based on the foregoing, Carter’s claim that he 

was overlooked for the warehouse coordinator job in 2004/2005 is time barred.” (Doc. 201 at 8). 

 Carter contends that Austal’s interpretation is incorrect and contrary to well established 

law, as although many acts upon which plaintiff’s Title VII claims rely may have occurred 

outside the 180 filing period, “they are part of the same actionable hostile environment claim.” 

(Doc. 312 at 14 (citing McKenzie v. Citation Corp., LLC, 2007 WL 1424555 (S.D. Ala. 2007)). 

Carter 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 

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 

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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. 

 Carter’s 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. Indeed, on his EEOC Charge, Carter 

checked the “Continuing Action” Box. (Doc. 216-3 at 14). Accordingly, Carter’s hostile work 

environment claim is not time barred. 

 Concerning failure to promote under Title VII and relevant to Austal’s time-barred 

argument, Carter contends that throughout his employment he was continuously denied 

promotional opportunities including the positions of Warehouse Supervisor (once) and 

Warehouse Coordinator (three times). Based on the record, it appears that the Warehouse 

Supervisor position at issue occurred in October 2004. At that time, Carter was offered the 

Warehouse Supervisor position at a salary of $32,000/year. Carter did not accept this specific 

promotion which was offered to him because it did not pay a certain salary.4

 In any event 

because the situation occurred before May 24, 2006, the claim is time barred. Accordingly, 

Austal’s motion, as to the October 2004 Warehouse Supervisor promotion claim under Title VII, 

 4 (Doc. 285-8 (Dep. Carter at 83)). Carter alleges that he declined a promotion to Warehouse 

Supervisor because he was only offered $32,000/year (meaning he would be making less per 

hour/annually than he was as a general warehouse employee (Carter testified that after overtime was 

applied he made around $38,000/year)). (Id. (Dep. Carter 83-88). Carter would have accepted the 

position if he had been offered more than $32,000/annually. (Id. (Dep. Carter 85-88)). 

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is GRANTED.

 Concerning the promotions to Warehouse Coordinator, Carter alleges that he was denied 

a promotion to this position not once, but three (3) times, in June 2005, Summer 2006, and in 

2007. Austal contends that “Carter’s claim that he was overlooked for the warehouse coordinator 

job in 2004/2005 is time barred[]” under Title VII because it occurred before May 24, 2006. 

However, Carter alleges that the promotions were not separate discrete acts but a continuous 

denial of the same promotion (i.e., a continuing violation). In Morgan, the U.S. Supreme Court 

drew a distinction between discrete acts of discrimination and hostile work environment claims, 

noting that “discrete acts such as...failure to promote....are easy to identify. Each incident of 

discrimination and each retaliatory adverse employment decision constitutes a separate 

actionable unlawful employment practice.” Morgan, 536 U.S. at 114. Courts in the Eleventh 

Circuit have noted that while Morgan was decided within the context of the requisite period for 

filing EEOC charges, “it is also instructive on the scope of the concept of a ‘continuing 

violation’....” See, e.g., Marshall v. Daleville City Bd. of Educ., 2006 WL 2056581, *3 (M.D. 

Ala. Jul. 24, 2006). Additionally, the Eleventh Circuit has held that the denial of a promotion is 

one time violation, the present consequences of which only are felt at the present time, and not a 

continuing violation. Id. (citing Roberts v. Gadsden Memorial Hosp., 835 F.2d 793 (11th Cir. 

1988), modified, 850 F.2d 1549 (11th Cir. 1988) and Price v. M & H Valve Co., 2006 WL 

897231, *7 (11th Cir. Apr. 7, 2006) (unpublished)). Bearing this in mind, the Court finds that 

Carter’s claim of failure to promote in June 2005 is time barred. Accordingly, Austal’s motion, 

as to the June 2005 Warehouse Coordinator promotion claim under Title VII, is GRANTED. 

Additionally, to the extent Austal’s motion (which asserts that “all acts” before May 24, 

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2006 are time barred under Title VII) can be construed to include the “Summer 2006” promotion 

claim to Warehouse Coordinator, Austal’s motion is DENIED because Austal has not presented 

any evidence of record as to what month the “Summer 2006” promotion occurred (i.e., whether 

before or after May 24, 2006). 

B. Section 1981

Austal makes no time-barred argument in its motion for summary judgment concerning 

Section 1981. Rather, Austal asserts these (and other) new arguments in its Reply. (Doc. 348 at 

2-4). 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 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, 

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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/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).5

 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 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) Carter’s 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) Carter makes no allegations and presents no evidence that the 

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

 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.

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

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

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

 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. 

 Upon review of the record the Court finds there is sufficient evidence, if believed by a 

jury, that Carter subjectively perceived his work environment to be racially hostile. The Court 

also finds sufficient evidence that a jury could find that Carter’s perception was objectively 

reasonable. Thus, the Court turns to element five: employer liability. 

 

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 This last element of Carter’s proof requires a basis for employer liability. In Faragher v. 

City of Boca Raton, 524 U.S. 775 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 

(1998), the U.S. 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. 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 defense. “Both 

elements must be satisfied...and 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). 

 Moreover, Austal is directly liable for co-worker harassment if Austal 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 v. Wolf Camera & Video,

222 F.3d 886, 889 (11th Cir. 2000). Once notice is established, a plaintiff must show that the 

employer “failed to take immediate and appropriate corrective action.” Watson v. Blue Circle, 

Inc., 324 F.3d 1252, 1261 (11th Cir. 2003). See also Frederick, 246 F.3d at 1314; Minix v. JeldWen, Inc., 237 Fed. Appx. 578 (11th Cir. 2007). The prompt remedial action must be 

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“reasonably likely to prevent the misconduct from recurring.” See, e.g., Baldwin v. Blue 

Cross/Blue Shield of Ala., 480 F.3d 1287, 1305 (11th Cir. 2007); Kilgore v. Thompson & Brock 

Mgt., Inc., 93 F.3d 752, 754 (11th Cir. 1996); Tipp v. AmSouth Bank, 76 F. Supp. 2d 1315, 1333 

(S.D. Ala. 1998). Specifically, the employer’s action must be “effective action” 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). See also Saville v. 

Houston Cty. Healthcare Auth., 852 F. Supp. 1512, 1528 (M.D. Ala. 1994). 

Throughout Carter’s employment (January 2003-October 2008) Austal maintained in its 

Hourly Employee Handbooks a Non-Discrimination and Anti-Harassment policy which all 

employees are required to read and sign. (Doc. 216-2 at 3 (Decltn. Lindley); Doc. 285-2 (Dep. 

Browning at 56-57); Doc. 283-55 (Austal’s April 2004-Issue D Hourly Employee Orientation 

Booklet); Doc. 283-56 (Austal’s November 2005-Issue E Hourly Employee Orientation 

Booklet); Doc. 216-2 at 15-66 (Austal’s April 2006-Issue F Hourly Employee Orientation 

Booklet and Austal’s November 2007-Issue A Employee Handbook)). During his employment, 

Carter received one (1) manual6

 and read and fully understood its contents. (Doc. 285-8 (Dep. 

Carter at 107)). 

 6

 There is no evidence of record indicating which of the Handbooks Carter received and signed 

during his employment. Presumably, given Lindley’s Declaration that each employee received a 

handbook and signed same during orientation right after being hired, and as Carter was hired in January 

2003, he would have signed a 2003 version. However, as neither party has submitted a 2003 Hourly 

Employee Handbook on summary judgment, the Court presumes that the Handbook was the same as the 

April 2004 Handbook.

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 Nevertheless, Austal’s April 2004, November 2005, April 2006 and November 2007 antiharassment policies inform employees about the grievance procedure for reporting incidents of 

discrimination and harassment. (Doc. 283-55 at 13-14; Doc. 283-56 at 25-26; Doc. 216-2 at 36-

37, 50-51). The April 2004, November 2005 and April 2006 policies provide, in relevant part: 1) 

employees are “urged to inform” their Supervisor of suspected violations of the policy, and the 

Supervisors are then required to report same to the Department Manager and 2) if for any reason 

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. (Doc. 283-55 at 13; 

Doc. 283-56 at 25; Doc. 216-2 at 37). The Revised Handbook issued in November 2007, further 

provides that an employee should report incidents of harassment to his Supervisor, but if not 

comfortable doing so, may talk to the Department Coordinator or Manager and then if still 

needing to talk with someone after completing both of those steps, may contact HR. (Doc. 216-2 

at 50). 

 Taking the facts in the light most favorable to Carter, it is clear that Carter complied with 

Austal’s reporting policy7

 and that that Austal had notice of the harassing behavior. However, 

there remains a genuine issue of material fact as to whether Austal exercised reasonable care to 

correct promptly the harassing behavior; an element of the defense to liability for both 

supervisory and co-employee harassment. Specifically, Carter has presented evidence that even 

after he reported the racially offensive graffiti and Confederate flags, the work environment 

 7

 Austal’s contention that Carter “waived his right” to include certain “misconduct” as a basis for 

his claims because he “elected not to report” same “in accordance with Austal’s policy” as “he failed to 

report any of the alleged incidents to Human Resources,” lacks any merit as he clearly was not required to 

report the incident to HR. This finding applies also to Carter’s complaints about supervisor’s and coworkers’ conduct. 

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remained unchanged with the exception that bathroom walls were periodically painted and after 

this litigation commenced the bathrooms were monitored. These facts, combined with Austal’s 

admissions regarding failure to train8

 its supervisors on Austal’s harassment policy prior to the 

Summer of 2008,

9

 create an issue of fact for the jury as to whether Austal should be held liable 

for the actions of its employees. As such, Austal’s motion for summary judgment on Carter’s 

hostile work environment claim is DENIED.

V. Section 1981/Title VII – Disparate Treatment (Race)

 Carter contends that he was intentionally discriminated against with respect to "terms and 

conditions of his employment" because of his race in violation of Title VII and Section 1981. 

Austal moves for summary judgment on Carter’s Title VII/Section 1981 promotion claims that 

he was not offered the Warehouse Coordinator job in Summer 2006 and 2007; and Carter’s 

Section 1981 promotion claim concerning the October 2004 Warehouse Supervisor position. 

 In individual disparate treatment claims, “the plaintiff bears the burden of proving that 

the employer discriminated against him because of his race.” Cooper v. Southern Co., 390 F.3d 

695, 723 (11th Cir. 2004), overruled on other grounds, Ash v. Tyson Foods, Inc., 546 U.S. 454, 

456-457 (2006). See also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); 

Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). Where there is no direct evidence 

of discrimination or a statistical pattern of discrimination, the burden shifting analysis of 

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) applies. Under this framework, the 

 8 Doc. 284-3 (Dep. Lindley I at 174); Doc. 284-9 (Dep. Carver I at 60); Doc. 284-11 (Dep. 

O’Dell at 210); Doc. 285-1 (Dep. Keeler at 47, 65, 97); Doc. 285-2 (Dep. Browning at 56-57)).

9 (Doc. 284-3 (Dep. Lindley I at 174); Doc. 284-4 (Dep. Lindley II at 74-75).

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plaintiff must establish a prima facie case of intentional race discrimination.10 Id. at 802. See

also e.g., E.E.O.C. v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1272 (11th Cir. 2002). If a prima 

facie case is established, the burden shifts to the employer to articulate a legitimate, 

nondiscriminatory reason for its actions. Id. Once the employer satisfies its burden, the burden 

shifts back to the plaintiff to offer evidence that the alleged reason of the employer is a pretext 

for unlawful discrimination. Id. at 1272-1273. 

To establish a prima facie case of failure to promote, a plaintiff must show that: 1) he is a 

member of a protected class; 2) who sought and was qualified for positions that the employer 

was attempting to fill; 3) despite his qualifications he was rejected; and 4) the employer either 

continued to attempt to fill the positions or in fact filled the positions with persons outside the 

plaintiff’s protected class. See, e.g., Harrington v. Disney Regional Ent., Inc., 276 Fed. Appx. 

863, 872 (11th Cir. 2007) (citing Crawford v. Western Electric Co., Inc., 614 F.2d 1300, 1315 (5th

Cir. 1980)). A plaintiff claiming that he was discriminatorily denied a promotion usually must 

show that he actually applied for the position as part of his prima facie case. Taylor v. Runyon, 

175 F.3d 861, 866 (11th Cir. 1999); Combs v. Plantation Patterns, 106 F.3d 1519, 1539 at n. 11 

(11th Cir. 1997). Where an employer has an informal promotion procedure (i.e., job openings are 

not posted or applications are not required), however, an employee may establish this element by 

showing that the position was available and that the employer had some reason or duty to 

consider him for same. Jones v. Firestone Tire and Rubber Co., Inc., 977 F.2d 527, 533 (11th Cir. 

1992); Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1133-1134 (11th Cir. 1984). 

 10 "Claims of race discrimination under § 1981 are analyzed in the same manner as claims 

brought under Title VII." DeLeon v. ST Mobile Aerospace Eng’g, Inc., 2010 WL 500446, *15 (S.D. Ala. 

Feb. 9, 2010).

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 A. Warehouse Coordinator Job – Summer 2006 and 2007

 1. Carter’s Allegations

Carter contends the position of Warehouse Coordinator was repeatedly given to equally 

or less qualified Caucasian employees, as promotions, instead of to Carter. Specifically, Carter 

alleges that he should have been promoted to the Warehouse Coordinator position in the Summer 

of 2006, and in 2007.11 

 First, Carter alleges that sometime in the Summer of 2006, he discussed his interest in the 

Warehouse Coordinator position with Caucasian Warehouse Manager Erin Regan and was 

interviewed for the position, but she offered the position to Caucasian employee Harry Parker. 

(Doc. 285-8 (Dep. Carter 88-91)). According to Carter, Parker declined the position and told 

Regan that Carter was already doing the job and “know[s] the job.” (Id. (Dep. Carter at 91-92, 

94)). Carter had trained Parker. (Id. (Dep. Carter at 146)). Carter talked with Regan (and a 

Production Manager) about the position (“I told them that I came because I was interested in the 

job. I ran the job before[]”); however, Regan never offered Carter the position even though 

Carter had “worked the job already.” (Id. (Dep. Carter 94-99)). Austal hired Caucasian employee 

Tom Bishop in April 2007 as the Warehouse Coordinator. (Id. Dep. Carter at 99-101, 141, 144)). 

Carter complained to his supervisors Harry Parker and Wilbur Lee, that he thought the decision 

had been made due to his race; Carter felt that Parker “knew what I was talking about and we left 

it at that.” (Doc. 285-8 (Dep. Carter 141-144)). Bishop subsequently “came to” Carter and told 

him that “Austal management wanted me to train him to do the Coordinator job.” (Doc. 285-9 

 11 As detailed supra, Carter’s Title VII claim as to the June 2005 promotion for this position has 

been deemed time-barred. 

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(Decltn. Carter at ¶10)). Bishop quit Austal in September 2007. (Id.). 

 Second, in 2007 after Bishop quit the Warehouse Coordinator position, Austal again did 

not offer the job to Carter. (Doc. 285-9 (Decltn. Carter at ¶10). Instead, Austal hired Caucasian 

supervisor Jerrod Bradford as Warehouse Coordinator, even though he had no warehouse 

experience. (Id.) After being promoted to the position, Bradford requested that Carter “train him 

on how to do his job.” (Id.) Carter complained to Bradford about training him, refusing to do so, 

because “Austal knows I know the job but won’t give me the job.” (Id.) 

2. Austal’s Contentions

 Austal contends that Carter has failed to establish a prima facie case of discrimination 

based on failure to promote him because Carter has not demonstrated that he was qualified and 

applied for the promotion or that the employee promoted was equally or less qualified than 

Carter and that Carter failed to submit sufficient information to demonstrate that he was similarly 

situated in all relevant respects. Specifically, Austal asserts while Carter contends he should 

have been promoted to Warehouse Coordinator in the Summer 2006 and 2007, he has not offered 

any evidence regarding the experience, qualifications and skills of his alleged comparators to 

establish that they were similarly situated employees. (Doc. 201 at 18). 

 3. Discussion

As noted supra, to establish a prima facie case of failure to promote, a plaintiff must 

show that: 1) he is a member of a protected class; 2) who sought (or should have been informed 

of the position) and was qualified for positions that the employer was attempting to fill; 3) 

despite his qualifications he was rejected; and 4) the employer either continued to attempt to fill 

the positions or in fact filled the positions with persons outside the plaintiff’s protected class. 

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Austal does not dispute any of the elements for a prima facie case of disparate promotion, 

apart from simply asserting that Carter’s proposed comparators are not similarly situated. (Doc. 

201 at 20-21). Austal conflates the prima facie requirements of a discriminatory pay claim with 

the prima facie requirements to establish a failure to promote claim. Similarly situated 

comparators are not necessary to establish a prima facie claim of failure to promote, rather 

plaintiff must only show that the position was filled with a person outside his protected class. 

See Harrington v. Disney Regional Ent., Inc., 276 Fed. Appx. 863, 872-873 (11th Cir. 2007) 

(providing that “[t]he elements are different for disparate pay and promotion claims....”). 

Carter is a member of a protected class. There is no evidence that he applied for each of 

the promotions at issue, however, that deficiency is overcome by the unrebutted evidence, cited 

by Carter, of the informality of the promotion process at Austal and the evidence that he was 

qualified for the promotions within the Warehouse Department (particularly given that he had to 

train the individuals hired for the position on how to do the job). Moreover, the record reveals 

that Carter specifically expressed his interest (and in his opinion applied) for the Summer of 

2006 opening. The Court finds that there is sufficient evidence that Austal had reason to 

consider Carter for the Summer 2006 and 2007 Warehouse Coordinator promotions within the 

Warehouse Department that he was denied and that Carter was qualified for the promotions in 

this department which were filled with individuals outside of Carter’s protected class. Thus, 

Carter has made his prima facie case. Because Austal has failed to present any legitimate nondiscriminatory reason for its decision, the motion for summary judgment on this claim of failure 

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to promote is DENIED in part.12 

B. Warehouse Supervisor Position

 At the outset, summary judgment has been granted on Carter’s Title VII warehouse 

supervisor claim such that only Carter’s Section 1981 warehouse supervisor claim is at issue. 

1. Carter’s Allegations

 Carter contends that while he was offered the promotion to “$32,000/year salary 

Warehouse Supervisor” in October 2004, he turned down the position because he was only 

offered $32,000/year salary. (Doc. 285-8 (Dep. Carter at 83-88)). According to Carter, accepting 

the promotion would mean that he would be making less per hour and/or annually than he was as 

a general warehouse employee (Carter testified that after overtime was applied he made around 

$38,000/year). (Id. (Dep. Carter 83-88). 

2. Austal’s Contentions

 Austal contends that it offered Carter the Warehouse Supervisor position but that he 

turned it down, explaining to Austal that he could make more money per year if he could be 

compensated for overtime as an hourly employee. (Doc. 201 at 21). 

 3. Discussion

As noted supra, to establish a prima facie case of failure to promote, a plaintiff must 

show that: 1) he is a member of a protected class; 2) who sought (or should have been informed 

of the position) and was qualified for positions that the employer was attempting to fill; 3) 

despite his qualifications he was rejected; and 4) the employer either continued to attempt to fill 

 12 Previously granted in part, on the time-barred nature of Carter’s Warehouse Supervisor 

promotion and on the June 2005 Warehouse Coordinator claim, under Title VII. See supra.

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the positions or in fact filled the positions with persons outside the plaintiff’s protected class. 

 Carter is a member of a protected class. The record reveals that Carter should have been 

informed of the position and in fact, that Carter was sought out by Austal for the promotion. 

Additionally, the record indicates that Carter was qualified for the job. Moreover, Austal did 

ultimately fill the position with a person outside of Carter’s protected class. However, Carter 

was not rejected by Austal for the Warehouse Supervisor promotion. Austal sought out Carter 

for the promotion, offered him the promotion and Carter rejected the promotion. Specifically, 

even though Carter claims he “didn’t turn the job down” but he “turned down the money[]” 

(Doc. 285-8 (Dep. Carter at 84-86)), the evidence reveals that he, in fact, did turn down the 

promotion. Carter testified that he specifically told Austal that he would only accept the 

promotion if Austal would pay him $38,000, as that was the amount of money he made in the 

prior year. (Doc. 285-8 (Dep. Carter at 85-88)).13 After Carter rejected the $32,000/year annual 

Warehouse Supervisor promotion, Austal hired Caucasian employee Harry Parker as Warehouse 

Supervisor and paid him $34,000/year. (Doc. 285-9 at 4 (Decltn. Carter at ¶9)). Thus, Carter 

has not established that he was rejected for a promotion for which he was qualified. Rather, the 

evidence is that Carter rejected the offer and would have rejected the offer at $34,000. 

 13 In the pending Motion to Strike (Doc. 347), Austal contends that Carter’s deposition testimony 

(that he told Austal he would take the supervisor position offered to him only it if would pay him $38,000 

as he made in the prior year (Doc. 347-1 at 4-6 (Dep. Carter at 85-87)) contradicts his Declaration 

statement of “I told Austal that I would at least need to make what I made last year [$34,000] to take the 

job[]” (Doc. 285-9 (Decltn. Carter at ¶9)). The Court has reviewed the cited deposition pages and finds 

the deposition testimony inconsistent with the cited sentence of Carter’s Declaration. Thus, Austal’s 

Objection is SUSTAINED as to the amount “$34,000” as contained in Paragraph 9. 

Additionally, Carter’s sworn deposition testimony contradicts the allegations in the Third 

Amended Complaint (Doc. 37 at 62 at ¶288). In the complaint, Carter alleges that he “asked to receive 

the same salary as Parker, $34,000 per year, but the Defendant refused.” (Id.) 

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Accordingly, Austal’s motion for summary judgment on Carter’s Section 1981 promotion claim 

for the Warehouse Supervisor position is GRANTED. 

VI. Punitive Damages

 Carter seeks an award of punitive damages against Austal. Upon consideration, the Court 

finds that resolution of the punitive damages issue is a matter better suited for trial. Thus, it is 

ORDERED that Austal’s motion for summary judgment regarding Carter’s punitive damages 

claim is CARRIED TO TRIAL. 

VII. Conclusion

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

as to Carter’s hostile work environment claim; GRANTED as to Carter’s failure to adequately 

train claim; GRANTED as to Carter’s disparate pay claims; GRANTED in part and DENIED

in part as to Carter’s disparate promotion claims, as detailed herein; and GRANTED as to 

Carter’s retaliation claim. Carter’s punitive damages request is CARRIED TO TRIAL. 

DONE and ORDERED this the 27th day of July 2011. 

 /s/ Kristi K. DuBose 

 KRISTI K. DuBOSE 

 UNITED STATES DISTRICT JUDGE

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