1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

NATHANIEL REED, 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. 

198, 199, 213), Plaintiff’s Opposition (Doc. 307) and Defendant’s Reply (Doc. 336); 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). Nathaniel Reed (“Reed”) asserts claims for hostile work environment and disparate treatment 

(discriminatory pay)2 based on race, in violation of Title VII and 42 U.S.C. § 1981. (Doc. 37 at 

103-108).3

 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

 Reed alleges a failure to train as a part of his pay raise claim. 

3

 Originally, Reed alleged a separate claim for retaliation (Doc. 37 at 105, 107-108 at ¶¶536, 

550, 552-554). Reed did not address this claim 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 promotions” under Title 

VII and Section 1981. (Doc. 307 at 2 (emphasis added)). Accordingly, the Court construes Reed’s 

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

(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. 199 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. Reed’s Employment

 Nathaniel Reed was hired by Austal as a Fitter on November 29, 2004, in the Aluminum 

Fabrication Department at the rate of $11/hour. (Doc. 295 at 30 (Exhibit 105-Sealed); Doc. 213-

1 (Dep. Reed at 32-33); Doc. 213-1 at 40; Doc. 213-2 (Decltn. Lindley at 10)). During his 

employment, Reed became B-class certified in welding. (Doc. 285-18 (Dep. Reed at 50)). Reed 

received three (3) pay raises dated June 12, 2005 ($11/hour to $13.50/hour—“shown huge 

 

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

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

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

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

Complaint. Likewise, Reed raised claims in his opposition brief that are not included in the Third 

Amended Complaint (failure to promote). 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).

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improvement since hiring on at Austal. Needs to be brought into line for his skill level”); January 

30, 2006 ($13.50/hour to $14.50/hour); and May 22, 2006 ($14.50/hour to $15.50/hour). (Doc. 

213-1 at 42-43, 45; Doc. 285-18 (Dep. Reed at 54); Doc. 213-2 (Decltn. Lindley at 10)). In June 

2007, Reed resigned. (Doc. 213-1 (Dep. Reed at 33); Doc. 213-2 (Decltn. Lindley at 10)). 

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 

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the Ainitial responsibility of informing the district court of the basis for its motion, and 

identifying those portions of >the pleadings, depositions, answers to interrogatories, and 

admissions on file, together with the affidavits, if any,= which it believes demonstrate the absence 

of a genuine issue of material fact.@ Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 

1991). (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the nonmoving party 

fails to make Aa sufficient showing on an essential element of her case with respect to which she 

has the burden of proof,@ the moving party is entitled to summary judgment. Celotex, 477 U.S. 

at 323. AIn reviewing whether the nonmoving party has met its burden, the court must stop short 

of weighing the evidence and making credibility determinations of the truth of the matter. 

Instead, the evidence of the non-movant 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 under 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

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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) 

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

contained in the untimely charge. Id. 

 Reed signed his EEOC Charge (for race, retaliation and “continuing action”) on 

November 13, 2006 and it was “received” on November 20, 2006. (Doc. 286-22). Calculating 

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

occurring within the 180 days prior (between May 25, 2006 and November 20, 2006) are timely. 

From this, Austal seeks summary judgment on: 1) “[a]ll alleged [discriminatory] acts” occurring 

between Reed’s hire date of November 28, 2004 and May 25, 2006; 2) Reed’s claim that he was 

denied a pay raise after he started working at Austal; and 3) Reed’s starting hourly rate claim that 

Caucasian employees earned more per hour than he did. (Doc. 199 at 6-7). 

 Reed 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. 307 at 

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

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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 

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. 

Reed’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. Accordingly, Austal’s motion for summary judgment 

on Reed’s hostile work environment claim (“all alleged acts”) is DENIED. 

Concerning Reed’s Title VII claims of discriminatory pay -- that he was denied a 

promised pay raise after he started working at Austal and that Caucasian employees earned more 

per hour than he did – the Court finds that based on the record and the facts of this case as 

alleged by Reed, his Title VII disparate pay claims are framed as a discriminatory compensation 

decision claim (i.e., paychecks received as a periodic implementation of a previously made 

discriminatory employment decision).4

 As such, Austal’s motion for summary judgment on 

Reed’s Title VII pay raise claims is DENIED.

 4

 As set forth in 29 U.S.C.A. § 626(d)(3): “....an unlawful practice occurs, with respect to 

discrimination in compensation in violation of this Act, when a discriminatory compensation decision or 

other practice is adopted, when a person becomes subject to a discriminatory compensation decision or 

other practice, or when a person is affected by application of a discriminatory compensation decision or 

other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in 

part from such a decision or other practice.” 

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IV. Austal’s “Reply” Claims

Austal asserts new arguments in its Reply concerning the timeliness of certain claims. 

Austal did not move for summary judgment on these claims. The Court will not consider these 

“new” claims because Austal cannot assert new allegations or arguments raised for the first time 

on Reply. As set forth recently by this Court in New Hampshire Ins. Co. v. Wiregrass Const. Co., 

Slip Copy, 2011 WL 206191, *2 at note 2 (S.D. Ala. Jan. 20, 2011): 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

judgment, they are impermissible and will not be considered. See also e.g., Abrams v. Ciba 

Specialty Chemicals Corp., 663 F. Supp. 2d 1220, 1232 at note 16 (S.D. Ala. 2009) (providing 

that “new arguments are impermissible in reply briefs”); Evans v. Infirmary Health Services, 

Inc., 634 F. Supp. 2d 1276, 1285 at note 14 (S.D. Ala. 2009) (instructing that “this Court's 

general practice is not to consider new arguments raised in a reply brief”). 

V. Title VII/Section 1981 – Hostile Work Environment (Race)

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Racial harassment is actionable under Section 1981 where the conduct is sufficiently 

severe or pervasive to alter the conditions of employment and create an abusive working 

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

(unpublished).5

 To establish a prima facie case of hostile work environment and/or racial 

harassment under Section 1981, the plaintiff must prove that: 1) he belongs to a protected group; 

2) he has been subject to unwelcome harassment; 3) the harassment was based on a protected 

characteristic of the employee (such as race); 4) the harassment was sufficiently severe or 

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

working environment; and 5) the employer is responsible for such environment under a theory of 

vicarious or direct liability. See, e.g., Reeves v. DSI Sec. Servs., Inc., 395 Fed. Appx. 544, 545-

546 (11th Cir. 2010) (unpublished); 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) Reed’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) Reed 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 Reed failed to report certain conduct; and 4) Austal took reasonable preventative and 

corrective/remedial measures to prevent a hostile work environment.

 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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 A. Motion to Strike6

Austal objects to certain portions of the Declaration of Nathaniel Reed (Doc. 285-19). 

Specifically, Austal contends that Paragraph 2 and Paragraph 7 of his Declaration directly 

contradict his prior sworn deposition testimony (i.e., a sham affidavit). 

Concerning Paragraph 2, Austal objects only to the first and second sentences, which 

state that “[d]uring my employment I heard white supervisors and white co-workers use racial 

slurs. I was called ‘boy’ several times by my supervisor Ron Moore.” Austal contends first, that 

the second sentence directly contradicts his deposition testimony: “Ron Moore, himself, called 

and told me on one occasion, Hurry up – he was with another white supervisor and I guess he 

was trying to – he got the – I thought he think it was a joke. He said, Hurry up, boy; go up there 

and get that.” (Doc. 347-4 at 5 (Dep. Reed at 73)). The Court’s review of Reed’s deposition 

indicates that Reed reiterated further, that Moore only “called me a boy that day[]” and there 

were “[n]o other instance[s], not with me.” (Doc. 285-18 (Dep. Reed at 73, 76-78, 134-135)). 

Thus, Austal’s Objection as to the second sentence is SUSTAINED as to the phrase “several 

times” contained therein. 

 6 As noted in the Court’s prior Order (Doc. 357), Austal’s Motion to Strike is construed as a Rule 

56(c)(2) Objection. With the December 1, 2010 rules change to Rule 56, it no longer appears that motions 

to strike exhibits submitted on summary judgment are appropriate. Revised Rule 56(c)(2) provides 

instead, that “[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.” FED.R.CIV.P. 56(c)(2). The Advisory Committee Notes 

specify further as follows: “Subdivision (c)(2) provides that a party may object that material cited to 

support or dispute a fact cannot be presented in a form that would be admissible in evidence. The 

objection functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the 

proponent to show that the material is admissible as presented or to explain the admissible form that is 

anticipated. There is no need to make a separate motion to strike. If the case goes to trial, failure to 

challenge admissibility at the summary-judgment stage does not forfeit the right to challenge 

admissibility at trial.” FED.R.CIV.P. Adv.Comm.Notes (2010 Amendments). 

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Regarding Austal’s objection to the first sentence’s mentioning of racial slurs, the Court 

finds that Austal’s objection is merited. In his deposition, Reed testified that there were no other 

racially discriminatory and/or hostile comments from Caucasian employees towards him, and 

that he did not ever observe anyone using the “N” word and that there were “[n]o other 

instances” of racial, discriminatory and hostile comments from Caucasian employees, lead 

persons and supervisors apart from when Moore called him “boy that day.” (Doc. 285-18 at 50, 

54-55 (Dep. Reed at 134, 139-140)). Thus, Reed’s statement that he heard supervisors and coworkers use racial slurs contradicts his deposition testimony. Thus, Austal’s Objection to the 

first sentence is also SUSTAINED.

Moreover, Austal also objects to the following portion of Paragraph 2 of Reed’s 

Declaration: “[t]here were many other slurs all over the shipyard. There was a new one everyday. 

I personally saw the racial slur ‘I hate niggers’ written on the ship on which I was working. I 

personally saw racial slurs written on picnic tables in the shipyard like ‘I hate niggers’ and ‘go 

back to Africa.’” Austal contends that when asked during his deposition about racial graffiti 

being located anywhere at Austal other than the bathrooms, Reed testified yes, “on the boat 

sometimes[,]” that he saw graffiti on the boat on “not too many occasions....every now and 

then.”7 (Doc. 347-4 at 7-8 (Dep. Reed at 139-140)). In sum, Reed testified that he saw the racial 

graffiti only on the bathroom walls and on the boat. Thus, Austal’s Objection is SUSTAINED

as to the following set forth in the aforementioned portion of Paragraph 2 of Reed’ Declaration: 

 7

 Austal notes that Reed testified, when asked if he saw graffiti anywhere other than the 

bathrooms, “no, sir.” However, when reading pages 139-140 of Reed’s deposition, it is clear that Reed’s 

testimony is a response of “no” to the question of whether there was anywhere else -- other than the boats

-- he saw graffiti while employed at Austal.

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“all over the shipyard” and “I personally saw racial slurs written on picnic tables in the shipyard 

like ‘I hate niggers’ and ‘go back to Africa.’” 

Further, Austal objects to the last sentence of Paragraph 7 of Reed’s Declaration: “I was 

also promised a raise when Austal got the government contract, but I never received this raise.” 

Austal contends that in his deposition, Reed testified that he received a raise close to the time the 

contract was awarded. (Doc. 347-4 at 2-4 (Dep. Reed at 67-69)). The Court’s review of the 

deposition reveals that Reed clearly testified that he received the raise that he had expected to 

receive in conjunction with the government contract: 

Q: So you had some understanding that with the award of the contract, that 

 the people that had been there a while were going to be taken care of and 

 you assumed that would be a pay raise? 

A: (Witness nods head). 

Q: And, then, shortly thereafter, you got a raise to fourteen twenty-five? 

A: Yes... 

Q So you were expecting a raise, fourteen twenty-five or maybe fourteen-

 fifty and you, in fact, got a raise to fourteen twenty-five? 

A Okay. 

(Doc. 213-1 (Dep. Reed at 68-69)). As such, Reed’s deposition testimony directly contradicts 

the last sentence of Paragraph 7 of his Declaration. Thus, Austal’s Objection as to this sentence 

of Paragraph 7 is SUSTAINED.

 B. Hostile Work Environment8

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

 8 Reed also alleges that he was treated differently at Austal by “not getting work assignments like 

the white crew members.” (Doc. 285-19 (Decltn. Reed at 3 at ¶9)). However, Reed did not allege a 

disparate treatment for work assignments claim in the Third Amended Complaint. As such, such claim is 

not at issue in this case.

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evidence.9

 Regarding racially and hostile discriminatory comments, Reed alleges that once, his 

Caucasian supervisor Ron Moore told him to “hurry up, boy” in front of another Caucasian 

supervisor; “I thought he think it was a joke.” (Doc. 285-18 (Dep. Reed at 73, 134-135)). Reed 

complained to supervisor Moore about the comment; in response, Moore “just laughed it off and 

walked away.” (Id. (Dep. Reed at 135)). This was the only verbal racial comment he was 

subjected to while employed at Austal. (Id. (Dep. Reed at 140)). Moore only “called me a boy 

that day[]” and there were “[n]o other instance[s], not with me.” (Id. (Dep. Reed at 76-78, 134-

135, 139-140)). However, Reed was aware that his co-workers heard the word “nigger” at 

Austal. (Doc. 285-19 (Decltn. Reed at 2)). 

 Reed was subjected to displays of the Confederate flag “almost every day that I worked 

at Austal[,]” as worn by a Caucasian co-workers on their t-shirts, on the back of trucks, on 

toolboxes, welding hats and drawn on the bathroom walls. (Doc. 213-1 (Dep. Reed at 73, 90-

92); Doc. 285-19 (Decltn. Reed at 2-3 at ¶3)). Some of the Caucasian co-workers and supervisors 

who wore the flag include “Wayne,” “Bryce,” Robert Sheppard, and “others.” (Doc. 213-1 

(Dep. Reed at 91)). Reed found the imagery “very disturbing.” Reed complained about the 

imagery to his supervisor Robert Hall, who responded “there was nothing he could do about it.” 

 9 Reed also relies on the allegations of the other 22 plaintiffs (Doc. 307 at 3-5,13 16-17, 19-20, 

23, 27-28, 31-32) to support that an overall racially charged work atmosphere exists at Austal (i.e., 

viewed through the lens of the plaintiffs’ collective allegations versus each plaintiff’s specific 

allegations). “To rely on the evidence, each [plaintiff] must show that he was aware of those incidents at 

the relevant time he alleges the hostile work environment.” See, e.g., Melton v. National Dairy, LLC, 705 

F. Supp. 2d 1303, 1342 (M.D. Ala. 2010) (citing Edwards Wallace Comm. College, 49 F.3d 1517, 1522 

(11th Cir. 1995)) (emphasis in original). See also e.g., Head v. Pitts Enterprises, Inc., Slip Copy, 2010 WL 

2773376, *8 (M.D. Ala. Jul. 14, 2010); McKenzie v. Citation Corp., LLC, 2007 WL 1424555, *13 (S.D. 

Ala. May 11, 2007). Courts in the Eleventh Circuit may consider statements not directed at a plaintiff and 

even hearsay statements, so long as the plaintiff was aware of the statements at the time he was employed. 

See, e.g., Yeomans v. Forster and Howell, Inc., Slip Copy, 2010 WL 3716394, *5-6 (M.D. Ala. Sept. 10, 

2010). The Court has only considered the evidence of which Reed testified that he was aware. 

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(Doc. 285-19 (Decltn. Reed at 3 at ¶3)). Austal took no action regarding the display of the 

Confederate flag in the workplace. 

 On a daily basis, Reed saw racial graffiti on the bathroom walls at Austal. (Doc. 213-1 

(Dep. Reed at 72-73, 80-81, 140, 158); Doc. 285-19 (Decltn. Reed at 2 at ¶2)). “I saw the word 

‘nigger’ at Austal so frequently, it unfortunately became part of my work environment. I could 

not use the restroom without seeing a racial slur or remark on the wall.” (Doc. 285-19 (Decltn. 

Reed at 2 at ¶2)). The racial graffiti included: “I hate niggers,” “if a nigger--something about 

food stamps in their boot,” “why niggers do not like using aspirin because they don’t like picking 

the cotton out of the top,” “how do you get an nigger not to go to work, put food stamps in their 

work boots,” and Confederate flag drawings. (Doc. 213-1 (Dep. Reed at 80-81); Doc. 285-18 

(Dep. Reed at 84-86, 139-140); Doc. 285-19 (Decltn. Reed at 2 at ¶2)). Reed complained -- “my 

only complaint[]” -- about the racial graffiti to one of his Caucasian supervisors Robert Hall. 

(Doc. 285-18 (Dep. Reed at 80-81, 86)). Reed asked Hall what could be done; Hall responded 

“when you’re bored, there’s nothing to do but sit on the toilet and write little things on the wall. 

You can’t control that.” (Id. (Dep. Reed at 81-82)). The racial graffiti “was up there for a long 

period of time...[and only] after the [EEOC] complaints [and after the lawsuit]...they [Austal] 

started taking action[;]” at some point Reed also photographed the offensive graffiti and 

drawings and showed them to supervisor Hall. (Id. (Dep. Reed at 82, 84-86, 167); Doc. 213-1 

(Dep. Reed at 83))). “I showed it [the photographs] to them [Hall and others in a safety meeting] 

and they just laughed it off.” (Doc. 285-18 (Dep. Reed at 86)). 

 Reed also saw racial graffiti on the ship at Austal “every now and then[,]” including “I 

hate niggers.” (Doc. 285-18 (Dep. Reed at 139-140)). 

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 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 Reed subjectively perceived his 

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

perception was objectively reasonable. 

 When viewing the facts in the light most favorable to Reed, a reasonable jury could not 

find that the harassing conduct alleged was frequent and severe. According to the evidence, 

Reed was not personally subjected to racially discriminatory comments and conduct (and if at 

all, only once for the “boy” comment), and thus, he was by no means subjected to regular, 

racially discriminatory comments or conduct. The only consistent or regular racial comments 

that Reed encountered consists of the written racial graffiti in the workplace bathrooms. 

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Additionally, while Reed testified that he daily saw Caucasian co-workers and supervisors 

display Confederate flag imagery at work, he only complained about the imagery once. While 

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

infer from Reed’s allegations that some of the conduct was racially demeaning, humiliating and 

degrading. McKenzie, 2007 WL 1424555 at *13. However, there is no indication in the record 

that Reed was exposed to regular/daily racial comments and/or conduct, apart from the bathroom 

graffiti and Confederate flag imagery. Reed has not established then, that the repeated conduct 

was severe and/or physically threatening. 

 Further, there is insufficient evidence of record that Reed believed that the environment 

unreasonably interfered with his job performance. Reed testified that when he saw 

discriminatory conduct at Austal, he would just “go to work, do what I have to do.” (Doc. 285-

18 (Dep. Reed at 44)). And even though Reed testified that the discrimination at Austal caused 

him stress and worry and that he developed high blood pressure due to same -- “I wasn’t getting 

paid the money...I was supposed to be getting paid[]” and “I went home worrying about it all the 

time, wondering why I’m not advancing, wondering why I’m getting treated a certain way...I 

believe that caused...my pressure to go up....just seeing this hostile work environment...every 

day seeing three hundred white supervisors and no one black in no kind of power[]”) -- he was 

diagnosed with high blood pressure after his employment with Austal. (Doc. 285-18 (Dep. Reed 

at 160-162)). Moreover, while employed at Austal between November 2004 and June 2007, 

Reed received three (3) pay raises. 

 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 

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at 1277. In this case, Reed has not submitted sufficient evidence demonstrating that any of the 

allegedly discriminatory conduct was frequent (apart from the bathroom graffiti and flag 

imagery), 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 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). Such 

circumstances of “repeated incidents....that continue...,” is not the case here. 

 In sum, under the totality of the circumstances and considering the allegations in the light 

most favorable to Reed, 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.10 As a result, because Reed has failed to satisfy this fourth 

element of his prima facie case for hostile work environment, the Court need not reach the fifth 

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

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

the specificity and quantity of evidence presented by each plaintiff.

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element (employer liability) and summary judgment is GRANTED in favor of Austal on Reed’s 

Title VII/Section 1981 hostile work environment claim. 

VI. Title VII/Section 1981 Disparate Treatment11

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

conditions of his employment" due to his race in violation of Title VII and Section 1981. Austal 

moves for summary judgment on Reed’s disparate treatment claims for discriminatory pay. 

 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 

plaintiff must establish a prima facie case of intentional race discrimination.12 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 

 11 As noted supra footnote three, Austal also moved for summary judgment on claims not 

included in the Third Amended Complaint (Doc. 200-1 at 16). Likewise, Reed appears to assert a new pay 

claim in his Declaration (Doc. 285-19 (Decltn. Reed at 3 at ¶4); however, Reed did not allege this pay 

claim in the Third Amended Complaint. Such claims merit no discussion here. 

12 "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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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. 

 In order to establish a prima facie case of disparate pay, Reed must establish that he held 

a position “similar to that of a higher paid employee who is not a member of [his] protected 

class.” Crawford v. Carroll, 529 F.3d 961, 974-975 (11th Cir. 2008) (citing Meeks v. Computer 

Assocs. Int'l, 15 F.3d 1013, 1019 (11th Cir. 1994)). The employee whom the plaintiff identifies 

as a comparator “must be similarly situated in all relevant respects.” Wilson v. B/E Aerospace, 

Inc., 376 F.3d 1079, 1091 (11th Cir. 2004). See also e.g., Drake-Sims v. Burlington Coat Factory 

Warehouse of Ala., Inc., 330 Fed. Appx. 795, 803 (11th Cir. 2009). It is necessary that a 

comparator must be “nearly identical” to the plaintiff “to prevent courts from second-guessing a 

reasonable decision by the employer.” Wilson, 376 F.3d at 1091. See also e.g., Head v. Pitts 

Enterp., Inc., Slip Copy, 2010 WL 2773376, *13 (M.D. Ala. Jul. 14, 2010); Drake-Sims, 380 

Fed. Appx. at 803; Sylva-Kalonji v. Board of School Comm’rs of Mobile Cty., 2009 WL 

1418808, *5-6 (S.D. Ala. May 20, 2009); Hill v. Emory Univ., 346 Fed. Appx. 390, 395 (11th

Cir. 2009); Beard v. 84 Lumber Co., 206 Fed. Appx. 852, 857 (11th Cir. 2006) (finding the 

plaintiff and a proposed comparator had different numbers of years of experiences such that they 

were not similarly situated in all relevant respects). 

 Austal contends that Reed cannot establish a prima facie case of race discrimination 

because Reed cannot demonstrate that any similarly situated Caucasian employee was paid more 

than Reed.13 Reed responds by identifying the following Caucasian employees who were 

 13 Reed also asserts a failure to train claim in conjunction with his discriminatory pay claim. 

(Doc. 307 at 10).

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allegedly paid more than he was while employed at Austal: 1) Bryce Goram, 2) Jared Kerr, 3) 

Kevin Lewis and 4) Richard Baskin.14 Austal then offers the legitimate non-discriminatory 

reason that the proposed Caucasian comparators had more, and prior, work experience, and some 

of the individuals simply had different jobs. (Doc. 336-4 (Decltn. Combs)). 

 Reed does not submit sufficient evidence or argument regarding subjective similarity of 

the comparators, such as experience, education, previous salary, or salary demand. Rather, Reed 

relies on Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1529 (11th Cir. 1992) 

(finding that the plaintiff established a prima facie case of sex discrimination under Title VII by 

demonstrating that she is female and that the job she occupied was similar to higher paying jobs 

occupied by males) and Mulhall v. Advance Sec., Inc., 19 F.3d 586 (11th Cir. 1994), and argues 

that he meets his burden of producing evidence of a similarly situated comparator by pointing to 

the aforementioned Caucasian employees. 

 However, as the Eleventh Circuit has counseled “[t]he methods of presenting a prima 

facie case are not fixed; they are flexible and depend to a large degree upon the employment 

situation.” Wilson, 376 F.3d at 1087. In more recent Eleventh Circuit precedent, we have seen 

the application of this flexibility. Specifically, the Court has pointed to the absence of relevant 

similarities amongst comparators, outside of job similarity, and held that plaintiff failed to meet 

 14 Reed also references a “Bobby Moreno” -- Reed specified that he trained Moreno on how to be 

a fitter and that Moreno told him that he earned $17.50/hour even though he was hired the same day as 

Reed (but as a helper, not a fitter). (Doc. 213-1 (Dep. Reed at 47-48); Doc. 285-19 (Decltn. Reed at 3 at 

¶6)). Moreno’s prior work experience was as a chef in a restaurant. (Doc. 285-18 (Dep. Reed at 61-62)). 

However, there is no record of any such employee by that name working at Austal.(Doc. 336-4 (Decltn. 

Combs at 4)). Reed’s testimony is hearsay in regards to Moreno’s pay and background, and would 

therefore be inadmissible. Thus, Reed is unable to sustain his burden of showing that Moreno is a proper 

comparator. As such, Austal’s motion for summary judgment concerning Bobby Moreno (and Reed’s 

higher starting wage pay disparity claim tied to same) is GRANTED.

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his/her prima facie case. For example, in Cooper, 390 F.3d 695,15 the Court determined that the 

comparators for purpose of a disparate pay claim were not appropriate, i.e. similarly situated, 

when the plaintiff did not establish: 1) “that the proposed comparators had similar levels of 

experience or education” id. at 745; 2) “similar levels of seniority” id. at 743; and 3) similar 

disciplinary records, id. at 741. 

 When the Eleventh Circuit has reached beyond job similarities in its similarly situated 

analyses, unrebutted evidence was in the record to show that there existed a relevant factor (e.g., 

experience, education, starting pay demand) which rendered the comparators dissimilar. For 

example, in Mack, 195 Fed. Appx. 829, the court stated “[w]e affirm the court's entry of 

summary judgment as to this claim because MAE produced uncontroverted evidence that Frye 

and Wicks were paid more than Mack because each had specialized experience and training in 

aeronautics and avionics, while Mack had only general electronic training. Consequently, Mack 

failed to show that they were ‘similarly situated in all relevant respects.’” Id. at 843. Thus, 

although the burden of production at the prima facie stage does not shift to the defendant to 

produce any evidence, the failure of the defendant to point to other traits that are “relevant” to 

the particular employment situation dictates that the Court should look strictly to job similarities. 

 Therefore, the Court will first examine the record to determine if Reed has submitted 

evidence of basic job similarities, and if so, whether there is evidence that the comparators are 

dissimilar in other relevant respects. 

 Reed alleges that Caucasians were paid a higher salary than African Americans at Austal. 

“Reed was assigned first class work, yet was only paid for second class work[]” – “[y]et, 

 15 The Court in Cooper cited both Miranda and Mulhall in reaching its conclusions.

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similarly situated white employees continually made a higher hourly wages than Reed for similar 

work performed.” (Doc. 37 at 106 at ¶¶540-541)). See also Doc. 285-19 (Decltn. Reed at 3 at 

¶7). Reed contends that his initial pay of $11/hour was less than the pay should have been for 

the amount of skill that he possessed and that Caucasian employees received higher pay rates 

than African American employees. Specifically, in his Declaration, Reed alleges that “[w]hite 

guys continued to come in making more than $15.50 per hour, which is what I was paid and they 

had far less qualifications and experience than I had.” (Doc. 285-19 (Decltn. Reed at 3 at ¶7)). 

 Reed was hired on November 29, 2004 at the hourly rate of $11/hour for the position of 

Fitter in the Aluminum Fabrication Department. See supra. Reed testified to prior work 

experience as a lead man at Havolvicks Engineering (where he worked on a ship doing structural 

fitting, and building steel platforms. (Doc. 213-1 (Dep. Reed at 55; Doc. 285-18 (Dep. Reed at 

59)). Reed testified that he also worked at General Marine Contractor as a sheet metal mechanic 

(duct sheet metal and fabricating for HVAC systems), at the Bender shipyard, Atlantic Marine 

shipyard, Jacksonville shipyard in Florida, and Omega shipyard in Mississippi. (Doc. 285-18 

(Dep. Reed at 57-58)). 

 As noted supra, to support his disparate hourly rate claim, Reed compares his starting 

hourly rate and his work experience against four (4) proposed comparators -- Caucasian 

employees who were hired within seven (7) months16 after Reed: 1) Bryce Goram, 2) Jared Kerr, 

3) Kevin Lewis and 4) Richard Baskin. 

 Specifically, while Reed alleges that Goram was hired as a fitter helper, Goram was 

 16 Goram was hired on 5/9/05; Kerr was hired on 5/2/05; Lewis was hired on 6/27/05; and 

Baskin was hired on 2/7/05. (Doc. 295 at 2, 14, 20 and 22 (Exhibit 105-Sealed)).

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actually hired on May 9, 2005 at Austal to be a welder, he requested a starting salary of 

$30,000/year and he had prior welding experience (approximately 1 year and 8 months 

experience at Threaded Fasteners as a shop worker, mig welder, threader and forklift operator). 

(Doc. 336-4 (Decltn. Combs at 4); Doc. 336-4 at 22-25; Doc. 295 at 14 (Exhibit 105-Sealed)). 

Additionally, while Reed alleges that Kerr was hired as a Fitter, Kerr was actually hired on May 

2, 2005 at Austal to be a welder and requested $15/hour; he had prior experience in welding, 

machining and fabrication as he had worked at Copper & Weller in mechanics and fabrication 

(1996-1997) as well as at Herndon and Marry, Inc. in metal fabrication (since 1999). (Doc. 336-

4 (Decltn. Combs at 4); Doc. 336-4 at 10-13; Doc. 295 at 20 Exhibit 105-Sealed)). Thus because 

Goram and Kerr held different jobs, they are not proper comparators. 

 Reed alleges that Richard Baskin is an appropriate comparator. Baskins applied to be a 

2nd Class Shipfitter on January 31, 2005 and was hired on February 7, 2005; he requested 

$12.65/hour; at that time, he had completed a shipfitter apprenticeship program at Bender 

Shipbuilding and was employed as a 1st Class Fitter at Bender in the process of obtaining 2nd

Class fluxcore welding status (employed since August 2003); and he could read blueprints; he 

could operate manlifts, rigs and flug cranes. (Doc. 336-4 (Decltn. Combs at 3-4); Doc. 336-4 at 

6-9; Doc. 295 at 3 (Exhibit 105-Sealed)). Thus, Baskin was not similarly situated because he 

had previous experience as a 1st Class Fitter. 

 However, the court does not reach the same conclusion as to Lewis. Reed alleges that 

Lewis was hired as a Fitter at $15.25 an hour. Austal does not dispute either the job title or 

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wage.17 The court then turns to whether Reed and Lewis were similar in other relevant respects, 

i.e. work experience and training. Reed testified that in addition to his four (4) years of service 

as a fireman for the Navy, he had extensive experience and training at shipyard and building 

ships because for 11⁄2 years he worked at General and Marine Sheet Metals as a sheet metal 

mechanic (responsible for fabricating and welding ship ventilation systems which entailed 

working at four (4) different shipyards); and that he worked as a “lead man” for approximately 

two (2) years at Havlovick Engineering (where he worked on a Navy test ship performing 

structural fitting and building metal (steel) platforms). (Doc. 285-18 (Dep. Reed at 55-61)). In 

comparison, Lewis had prior construction and aviation construction experience dating back to 

1998 (he was working as a supervisor at Mobile Aerospace at the time he applied); he was able 

to read drawings and blueprints; and he attended Faulkner Community College for Industrial 

Electricity. (Doc. 336-4 (Decltn. Combs at 4); Doc. 336-4 at 14-17; Doc. 295 at 22 (Exhibit 105-

Sealed)). The Court finds that Reed has established sufficient similarity and thus his prima facie 

case. The Court also finds that Austal has failed to sufficiently address Reed’s prima facie case 

such that Austal’s motion for summary judgment is DENIED on this claim. 

 Additionally, Reed alleges that he “was promised he would receive a raise when the 

Defendant received a particular government contract. However, once the contract was in place he 

never received the raise. Similarly situated white employees received raises[]” and he 

“complained about not receiving a raise while white employees had their wages increased.” 

(Doc. 37 at 106 at ¶¶542-543)). See also Doc. 285-19 (Decltn. Reed at 3 at ¶7). Reed testified 

 17 As to Lewis’ starting salary, the Court relies on Austal’s notation on Lewis’ application of 

$15.25. (Doc. 336-4 at 17).

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that while he started at $11/hour, Austal subsequently was awarded a contract “where we all was 

supposed to...have been making the same amount of money. But I noticed that I wasn’t making 

what everybody else was making.” (Doc. 213-1 (Dep. Reed at 46)). Reed explained that he 

thought based on safety meetings where manager Harley Combs talked about the contract 

(telling the employees that “it’ll be in your best interest to stick around and for those guys who 

have been with us, we’re going to take care of you, something to that notion[]”) that with the 

new contract -- “from what my understanding was” -- Austal “was going to ...put us in ...that 

pay rank [earning $14/hour]. But it never happened.” (Id. (Dep. Reed at 64-65)). Additionally, 

Reed testified that supervisor Chris Robinson specifically told Reed that because of the contract, 

Reed would receive a raise to $14.25 or $14.50 per hour. (Id. (Dep. Reed at 65-67)). Reed did 

not receive the raise and when Reed complained, and asked supervisor Robinson “how come, 

and he couldn’t give me an answer.” (Id. (Dep. Reed at 46); Doc. 285-18 (Dep. Reed at 72)). “I 

didn’t get my money.” (Doc. 285-18 (Dep. Reed at 92)). 

 However, Reed simultaneously testified that he received a raise to $14.25/hour close to 

the time that the contract was awarded to Austal, just after he was assigned to work on another 

supervisor’s crew: “he immediately got me the fourteen twenty-five.” (Doc. 213-1 (Dep. Reed at 

67-68)). Reed clearly testified that he received the raise that he had expected to receive. (Doc. 

213-1 (Dep. Reed at 68-69)). Notably, Reed testified that after he complained to supervisor 

Robinson about not receiving the raise he expected, he was transferred to work on supervisor 

Ron Moore’s crew, at which time he received a pay raise to $14.25/hour. (Doc. 285-18 (Dep. 

Reed at 93)). Accordingly, Reed’s own sworn deposition testimony undermines his denial of a 

pay raise claim. As such, Austal’s motion for summary judgment on Reed’s Section 1981 pay 

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raise claim tied to the government contract awarded to Austal, is GRANTED. 

VII. Conclusion

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

GRANTED as to Reed’s hostile work environment claim; DENIED as to Reed’s discriminatory 

pay claims as detailed herein; and GRANTED as to Reed’s retaliation claim. Reed’s punitive 

damages request is CARRIED TO TRIAL. 

 DONE and ORDERED this the 23rd day of September 2011. 

 

 /s/ Kristi K. DuBose 

 KRISTI K. DuBOSE 

 UNITED STATES DISTRICT JUDGE 

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