1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

LARRY LAFIETTE, 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. 

180, 181), Plaintiff’s Opposition (Doc. 306) and Defendant’s Reply (Doc. 331). 

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). Larry Lafiette (“Lafiette”) asserts claims for hostile work environment and discrimination 

(pay, promotion and training), based on race in violation of Title VII and 42 U.S.C. § 1981. 

(Doc. 37 at 79-83).2

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

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

Title VII claims.

2 Originally, Lafiette alleged a separate claim for retaliation (Doc. 37 at 80-82 at ¶¶391, 399-400, 

402-404). Lafiette 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. 306 at 2 (emphasis added)). Accordingly, the Court construes Lafiette’s 

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

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

While Austal also contends in its Reply that Lafiette abandoned his training claims, the Court 

cannot agree. In his opposition to summary judgment, Lafiette contends in connection with his denial of 

promotion claims that he was denied welding/blueprint training and alleged such general denials in the 

(Continued) 

Case 1:08-cv-00155-KD-N Document 513 Filed 10/13/11 Page 1 of 26
2 

A. Austal

 Defendant Austal USA (“Austal”) is an Australian shipbuilding company dedicated to the 

design and construction of customized aluminum commercial and military vessels, located in 

Mobile, Alabama. (Doc. 181 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. Lafiette’s Employment

 Lafiette began working for Austal on January 30, 2006 as a Fabrication Apprentice at the 

rate of $10/hour. (Doc. 209-1 (Dep. Lafiette at 36, 51); Doc. 285-13 (Dep. Lafiette at 36-37, 52); 

Doc. 295 at 21 (Exhibit 105-Sealed); Doc. 209-2 at 8 (Decltn. Lindley)). Lafiette received four 

(4) pay raises dated May 22, 2006 (to $12.50/hour); January 1, 2007 (to $15/hour); January 7, 

2008 (to $16/hour – “Larry has made a great improvement. Larry will do anything you tell him 

to do.”); and June 30, 2008 (to $16.48/hour). (Doc. 295 at 21 (Exhibit 105-Sealed); Doc. 209-1 

at 47-48, 50; Doc. 209-2 at 8 (Decltn. Lindley)). In March 2008, Lafiette’s job position changed 

from Fabrication Apprentice to Trades Assistant. (Doc. 209-2 at 8 (Decltn. Lindley)). On May 

6, 2009, Lafiette was laid off due to downsizing. (Doc. 209-1 (Dep. Lafiette at 46-47, 49). 

II. Standard of Review

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

 

Third Amended Complaint. (Doc. 306 at 10-11). 

Moreover, any and all disparate impact claims against Austal have been dismissed from this 

litigation. (Doc. 366). 

Case 1:08-cv-00155-KD-N Document 513 Filed 10/13/11 Page 2 of 26
3 

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.@ 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 

Case 1:08-cv-00155-KD-N Document 513 Filed 10/13/11 Page 3 of 26
4 

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 Title VII Claims

 A plaintiff may not sue under Title VII unless he first exhausts administrative remedies 

by filing a timely charge of discrimination with the appropriate agency. See, e.g., Wilkerson v. 

Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001). “In a non-deferral state such as Alabama, 

the deadline for filing is 180 days after the alleged discriminatory act.” Carter v. University of 

South Alabama Children's & Women's Hosp., 510 F. Supp. 2d 596, 606 (S.D. Ala. 2007). See

also Tipp v. AmSouth Bank, 76 F. Supp. 2d 1315, 1327 (S.D. Ala. 1998). “If the victim of an 

employer's unlawful employment practice does not file a timely complaint, the unlawful practice 

ceases to have legal significance, and the employer is entitled to treat the unlawful practice as if 

it were lawful.” City of Hialeah, Fla. v. Rojas, 311 F.3d 1096, 1102 (11th Cir. 2002). See also

Sheffield v. United Parcel Service, Inc., 2010 WL 4721613, *2 (11th Cir. Nov. 22, 2010) 

(unpublished); Jordan v. City of Montgomery, 2008 WL 2529573, *1 (11th Cir. Jun. 26, 2008) 

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

contained in the untimely charge. Id. 

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

November 13, 2006 and it was “received” on November 20, 2006. (Doc. 286-17 at 3-5). 

Case 1:08-cv-00155-KD-N Document 513 Filed 10/13/11 Page 4 of 26
5 

Calculating from November 20, 2006, Austal contends that “[a]ll alleged acts” occurring 

between Lafiette’s hire date of January 30, 2006 and May 25, 2006 (180 days prior to November 

20, 2006) are time barred under Title VII. (Doc. 181 at 7). 

 Lafiette 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. 306 at 

14-15 (citing McKenzie v. Citation Corp., LLC, 2007 WL 1424555 (S.D. Ala. 2007)). Lafiette 

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 

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. 

Lafiette’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 

Case 1:08-cv-00155-KD-N Document 513 Filed 10/13/11 Page 5 of 26
6 

investigated the details during discovery. Accordingly, Austal’s motion for summary judgment 

on the untimeliness of this Title VII hostile work environment claim is DENIED. 

 Concerning failure to promote, Lafiette asserts that Caucasian co-workers were promoted 

instead of and/or before him including Kenneth Parnell3

 (promoted to lead man in October 2007 

(Doc. 209-1 (Dep. Lafiette at 81, 98)), Jeremy Donald (promoted to lead man) (Id. at 99-103, 

109), Jeffrey Goodwin (promoted to Trades Assistant), Nicholas Mayo (promoted to Trades 

Assistant), and Justin Hatfield (promoted to Fitter). Failure to promote claims are “discrete acts.” 

See, e.g., Morgan, 536 U.S. at 114: “Discrete acts such as termination, failure to promote, denial 

of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each 

retaliatory adverse employment decision constitutes a separate actionable “unlawful employment 

practice.” Id. (emphasis added). 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. Additionally, the Eleventh Circuit has held that the denial 

of a promotion is a one time violation, the present consequences of which only are felt at the 

present time, and not a continuing violation. See, e.g., 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., 177 Fed. Appx. 1 (11th Cir. Apr. 7, 2006) (unpublished)). 

 The record reveals that Lafiette was hired on January 30, 2006, as Fabrication 

Apprentice, became a Trades Assistant on March 17, 2008 and became a Fitter on June 30, 3008. 

 3 Referenced by Lafiette as “Kenneth Payne.” (Doc. 37 at 81 at ¶396).

Case 1:08-cv-00155-KD-N Document 513 Filed 10/13/11 Page 6 of 26
7 

See supra. Concerning Jeremy Donald’s promotion to lead man, he was hired on April 4, 2005 

(Doc. 295 at 10 (Exhibit 105-Sealed). However, on summary judgment the parties do not 

provide evidence as to the actual date of Donald’s promotion, from which the Court can 

determine whether Lafiette’s claims is timely, and given the voluminous record, the Court will 

not unilaterally endeavor to ascertain the specific date. Regarding Kenneth Parnell, he was hired 

on June 25, 2007 and thus, his October 2007 promotion to lead man would have occurred after 

May 25, 2006. (Doc. 295 at 28 (Exhibit 105-Sealed)). Nicholas Mayo was hired on June 5, 2006 

and thus, his promotion to Trades Assistant would have occurred after May 25, 2006. (Id. at 24). 

Similarly, Jeffrey Goodwin was hired on June 12, 2006 and thus, his first promotion (to Trades 

Assistant) would have occurred after May 25, 2006. (Id. at 14). Likewise, Justin Hatfield was 

hired on January 2, 2007 and thus, his promotion to Fitter would have occurred after May 25, 

2006. (Id. at 15). As such, Austal’s motion for summary judgment as to Lafiette’s failure to 

promote claims, based on untimeliness, is DENIED. 

Next, concerning Lafiette’s hourly wages disparate pay claim, the Court finds as follows. 

As alleged by Lafiette, he contends that he was “paid less per hour than similarly situated white 

employees.” (Doc. 37 at 81 at ¶395). Thus, the claim is framed by Lafiette 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 

 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.”

Case 1:08-cv-00155-KD-N Document 513 Filed 10/13/11 Page 7 of 26
8 

judgment on this Title VII pay raise claim, based on untimeliness, is DENIED. 

Further, Lafiette contends that he was denied welding and blueprint training. 

Specifically, Lafiette alleges that he asked his supervisor Chris Robinson for welding and 

blueprint training which was denied and given instead to Caucasian co-workers. (Doc. 37 at 81 

at ¶¶392-394; Doc. 306 at 10). Similar to failure to promote claims, failure to train claims are 

one-time employment events or “discrete acts.” See, e.g., O'Connor v. City of Newark, 440 F.3d 

125, 127 (3rd Cir. 2006) (quoting Morgan, 536 U.S. at 114); Pegram v. Honeywell, Inc., 361 F.3d 

272, 280 (5th Cir. 2004); Hunter v. Secretary of U.S. Army, 565 F.3d 986, 993 (6th Cir. 2009); 

Copeland v. CVS Pharmacy, Inc., 2006 WL 2699045, *35 (N.D. Ga. Sept. 15, 2006). However, 

on summary judgment, the parties have not provided sufficient evidence as to the actual dates of 

the training denials, from which the Court can determine whether Lafiette’s claims are timely, 

and given the voluminous record, the Court will not unilaterally endeavor to ascertain those 

specific dates. At best, Lafiette’s deposition testimony reveals that Robinson’s denial of training 

occurred after November 13, 2006. (Doc. 209-1 (Dep. Lafiette at 80-81)). As such, this denial 

of training (and any others thereafter) occurred after May 25, 2006. Thus, Austal’s motion as to 

Lafiette’s Title VII denials of training claims, based on untimeliness, is DENIED.

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

Racial harassment is actionable under Section 1981 or Title VII where the conduct is 

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

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

Case 1:08-cv-00155-KD-N Document 513 Filed 10/13/11 Page 8 of 26
9 

Cir. 2009) (unpublished).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) (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) Lafiette’s evidence of sporadic and isolated incidents of racially 

hostile comments, conduct and graffiti during the time she was employed do not meet the severe 

or pervasive threshold; 2) Lafiette 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 Lafiette failed to report certain conduct; and 4) Austal took reasonable preventative 

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

 A. Severe or Pervasive

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

 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.

Case 1:08-cv-00155-KD-N Document 513 Filed 10/13/11 Page 9 of 26
10 

evidence.6

 Regarding racially and hostile discriminatory comments, Lafiette alleges that he was 

possibly called “nigger” once by leadman “Gorham” on another crew, but is not sure (“where 

you been, nigger”). (Doc. 209-1 (Dep. Lafiette at 151-153, 155)). A few weeks later, Lafiette 

told Gorham that he found the word “nigger” offensive and Gorham responded “[d]on’t worry 

about it. That ain’t me[]” and “[i[f I really say something to you like that, I don’t mean it.” (Id. 

(Dep. Lafiette at 154-155)). Lafiette did not report the comment because he was not really sure 

what Gorham had said. (Id.) Lafiette alleges that his supervisor Dane Tomberlin called him 

“’[b]oy,’ and stuff like that all the time[]” – over 10 times. (Id. (Dep. Lafiette at 156-158)). 

Lafiette told Tomberlin “don’t be calling me that[]” as he did not like it; in response, Tomberlin 

said “I’m just playing with you.” (Id. (Dep. Lafiette at 157)). Lafiette did not report 

Tomberlin’s comment to management or HR, and Tomberlin “would [still] say it from time to 

time.” (Id. Dep. Lafiette at 157-158)). Lafiette adds that Wesley Fiveash (leadman on Lafiette’s 

crew) and Curt Hunt (co-worker who then became leadman after Fiveash was promoted to 

supervisor) also called him “boy” sometimes (Fiveash over 10 times and Hunt over 50 times). 

(Doc. 209-1 (Dep. Lafiette at 156, 158, 161)). Lafiette testified that “they were saying it [boy] 

 6 Lafiette also relies on the allegations of the other 22 plaintiffs (Doc. 306 at 2-4, 14, 17, 18, 20-

21, 23-24, 28, 30-32, 44-46) 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 Lafiette testified that he was aware while 

employed at Austal. 

Case 1:08-cv-00155-KD-N Document 513 Filed 10/13/11 Page 10 of 26
11 

like in a playing gesture, but I didn’t take that too kindly, though[;]” he complained, after which 

it stopped. (Id. (Dep. Lafiette at 156)). Lafiette did not report the comments to management or 

HR, but told all of them that he did not like the term: Fiveash responded just as Tomberlin did 

but he was moved and they no longer saw each other so the comments stopped; and Hunt 

responded by telling him “[s]hut up, you need to go back to work” or something like that. (Id. 

(Dep. Lafiette at 160-162)). 

Lafiette was subjected to Confederate flag imagery as displayed on several Caucasian coworkers’ t-shirts who worked in another department. (Doc. 209-1 (Dep. Lafiette at 192); Doc. 

285-13 (Dep. Lafiette at 166)). Lafiette is aware that another African American co-worker told 

the Caucasian co-workers that she found the flag imagery offensive. (Doc. 285-13 (Dep. Lafiette 

at 193)). Lafiette told his supervisor Chris Robinson at morning safety meetings that he found the 

flag imagery offensive; his response was that there was no dress code so there “ain’t nothing he 

can do about it.” (Id. (Dep. Lafiette at 194)). 

Lafiette was constantly subjected to racial epithets in graffiti on bathroom walls and 

stalls. (Doc. 209-1 (Dep. Lafiette at 182); Doc. 285-13 (Dep. Lafiette at 163-164, 166, 175, 235-

236)). Lafiette “always” reported the racial graffiti; in response, he would be told “we can’t do 

nothing about it[]” or “[i]t’s not like we can just watch the bathrooms all day.” (Doc. 209-1 

(Dep. Lafiette at 182, 186, 189, 191); Doc. 285-13 (Dep. Lafiette at 177-178, 181-182, 186, 

229)). The graffiti included the following: White power with a drawing of a hooded Klansman 

(a photograph of this on the bathroom wall on someone’s phone); “why don’t niggers use 

aspirin-because they don’t want to pick the cotton out of the top;” “why do you think a white 

man loves to F a black girl;” and “see niggers travel in packs just like monkeys.” (Doc. 209-1 

Case 1:08-cv-00155-KD-N Document 513 Filed 10/13/11 Page 11 of 26
12 

(Dep. Lafiette at 182, 186, 189); Doc. 285-13 (Dep. Lafiette at 163-164, 166, 175-179, 182-183, 

188-189, 191)). 

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

graffiti by cleaning the men’s bathrooms and painting black over the graffiti on a regular basis. 

(Doc. 285-20 (Dep. Browning at 16, 110); Doc. 331-2 (Dep. Lafiette at 180)). According to 

Lafiette, Austal “started trying to paint the walls probably about every three to four weeks.” 

(Doc. 209-1 (Dep. Lafiette at 182, 189)). Nevertheless, the painting did not deter the offending 

scribblers, as the walls would soon be filled again with racially offensive graffiti. (Doc. 285-20 

(Dep. Roberson at 313); Doc. 284-4 (Dep. Lindley II at 95-96, 166-168, 188-190, 195-196, 202-

203); Doc. 284-5 (Dep. Lindley III at 254); Doc. 284-11 (Dep. O’Dell at 74-75); Doc. 284-7 

(Dep. Friedlieb I at 84)). 

Approximately 31⁄2 years after being hired, Lafiette was shown a photograph of one 

noose, found by others in the break room at work. (Doc. 209-1 (Dep. Lafiette at 170-171)). 

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. 

Case 1:08-cv-00155-KD-N Document 513 Filed 10/13/11 Page 12 of 26
13 

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 Lafiette subjectively perceived his 

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

perception was objectively reasonable. 

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

find that all of the harassing conduct alleged was frequent and severe.7 According to Lafiette, he 

experienced isolated and random racial comments and only once was made aware that a noose 

had been found. As for consistent or regular incidents which were potentially humiliating, 

Lafiette regularly encountered racial graffiti in the bathrooms. However, Lafiette has not 

established that any of this repeated conduct was severe, physically threatening or that it 

unreasonably interfered with his job performance (e.g., Lafiette received four (4) raises while 

employed at Austal). 

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

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

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

conduct was frequent or severe, physically threatening, humiliating, demeaning and/or 

unreasonably interfered with his job. See, e.g., Barrow v. Georgia Pacific Corp., 144 Fed. Appx. 

 7 The Court has considered the evidence presented by each Plaintiff in isolation. Accordingly, 

there are different determinations among the Plaintiffs, regarding the claim of a hostile work environment, 

based on the specificity and quality of evidence presented by the individual Plaintiff. 

Case 1:08-cv-00155-KD-N Document 513 Filed 10/13/11 Page 13 of 26
14 

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). In sum, 

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

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

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

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

environment. 

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

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

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

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

 Lafiette 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. 

Specifically, Lafiette asserts that: 1) he was paid less per hour than similarly situated Caucasian 

employees; 2) Austal failed to promote him to lead man and other positions; and 3) he was 

Case 1:08-cv-00155-KD-N Document 513 Filed 10/13/11 Page 14 of 26
15 

denied training. 

 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.8 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. 

 A. Hourly Wages

 In response to summary judgment, Lafiette contends that he “has been denied pay 

increases” and suggests -- within his discussion of comparators -- that he was hired in at a lower 

hourly rate. (Doc. 306 at 8-9).9

 Lafiette offers Brad Chunn, Brandon Myers, Jeffrey Goodwin, 

 8 "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).

9 The only pay discrimination claim asserted in the Third Amended Complaint is that “[w]hile an 

apprentice, Lafiette was also paid less per hour than similarly situated white employees.” The Court has 

only considered this claim.

Case 1:08-cv-00155-KD-N Document 513 Filed 10/13/11 Page 15 of 26
16 

Nicholas Mayo, Justin Hatfield, Jamey Breland, Daniel Chambers, Richard Chounn, and Daniel 

Floyd, as proposed comparators for his hourly wage claim (based in part on “hired in” rates). 

(Doc. 306 at 8-9, 37 at note 30). 

 In order to establish a prima facie case of disparate pay, Lafiette 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) (unpublished). It is necessary 

that a comparator must be “nearly identical” to the plaintiff “to prevent courts from secondguessing 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 Lafiette cannot 

establish a prima facie case of race discrimination because Lafiette cannot demonstrate that any 

similarly situated non-African American employee was paid more than Lafiette. 

Lafiette does not submit any evidence or argument regarding subjective similarity of the 

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

Case 1:08-cv-00155-KD-N Document 513 Filed 10/13/11 Page 16 of 26
17 

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). Based on 

these cases, Lafiette then contends that he has met his burden of producing evidence of a 

similarly situated comparator “through evidence that job titles are the same or that plaintiff 

performed the same types of tasks [and job duties] as his/her comparator.” (Doc. 306 at 38). 

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 

his/her prima facie case. For example, in Cooper, 390 F.3d 695, 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 v. ST Mobile Aerospace Eng., Inc., 195 Fed. Appx. 829 (11th Cir. 2006) 

(unpublished), the court stated “[w]e affirm the court's entry of summary judgment as to this 

Case 1:08-cv-00155-KD-N Document 513 Filed 10/13/11 Page 17 of 26
18 

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 Lafiette has submitted evidence of basic job similarities, and 

if so, whether there is evidence that the comparators are dissimilar in other relevant respects. 

 As detailed supra, Lafiette was hired on January 30, 2006 as a Fabrication Apprentice at 

$10/hour and did not become a Trades Assistant until March 2008. The record reveals that 

Chunn, Myers, Chambers and Floyd are not proper comparators, as they were not hired as 

Fabrication Apprentices. Chunn was hired as a Trades Assistant, Myers was hired as a Welder, 

Chambers was hired as a Storekeeper (in the Site Services Department) and Floyd was hired as a 

Trades Assistant (in the Engineering Department). (Doc. 331-4 at 3, 6 (Decltn. Dr. Steward)). 

There is no evidence that these jobs entail the same or similar duties. Austal has submitted 

uncontroverted evidence that the Trades Assistant position is “an entirely different position from 

Fabrication Apprentice and entails different responsibilities, training, skills, and experience.” 

(Doc. 209-2 at 9 (Decltn. Lindley)). 

 Similarly, there is no evidence establishing that Mayo was hired as a Fabrication 

Apprentice. (Doc. 331-6 at 3-4 (Decltn. Combs)). The only position noted in connection with 

Mayo is that he is now a Trades Assistant, and he actually applied to be a Mig Welder. (Doc. 

Case 1:08-cv-00155-KD-N Document 513 Filed 10/13/11 Page 18 of 26
19 

295 at 24 (Exhibit 105-Sealed); Doc. 331-6 at 29). Additionally, as noted in the Declaration of 

Harley Combs (Fabrication Department Manager), Austal takes into consideration skills, 

education, experience and other qualifications of each applicant when determining pay and has 

established different titles for its positions (such as Trades Assistant, Fitter, Welder) due to the 

different skill sets, training, experience and qualifications needed to perform the job duties 

unique to each job title. (Doc. 331-6 at 4 (Decltn. Combs)). 

Regarding Breland, the record reveals that as of October 9, 2007 he was an Apprentice 

earning $14.90/hour, and because that position’s length is for several years and Breland was 

hired on October 9, 2006, the Court is satisfied that Breland was initially hired as an Apprentice. 

(Doc. 295 at 5 (Exhibit 105-Sealed)). However, the Department in connection with Breland’s 

position of Apprentice is that of Pipe & Machinery, not Fabrication as applies to Lafiette. 

Lafiette has presented no evidence that an apprenticeship in Fabrication is the same or similar to 

that of one in a different department and/or specifically that of Pipe & Machinery. 

 Similarly, for Chounn, the record reveals that he is now an Apprentice earning 

$21.22/hour, and because that position’s length is for several years and Chounn was hired on 

June 11, 2007, the Court is satisfied that he was initially hired as an Apprentice. (Doc. 295 at 7 

(Exhibit 105-Sealed)). Additionally, the record reveals that he was hired at the rate of $20/hour. 

(Id.) However, the only Department in connection with Chounn’s position of Apprentice is that 

of Electrical, not Fabrication as applies to Lafiette. Lafiette has presented no evidence that an 

apprenticeship in Fabrication is the same or similar to that of one in a different department and/or 

specifically that of Electrical. 

 Concerning Goodwin, the record reveals that he was hired as a Fabrication Apprentice on 

Case 1:08-cv-00155-KD-N Document 513 Filed 10/13/11 Page 19 of 26
20 

June 12, 2006 at an unknown starting hourly rate. (Doc. 331-6 at 3 (Decltn. Combs); Doc. 295 

at 14 (Exhibit 105-Sealed); Doc. 331-6 at 21). Lafiette has submitted no admissible evidence as 

to Goodwin’s starting rate (i.e., that he was hired as a Fabrication Apprentice at $11/hour). 

Additionally, Goodwin requested a starting pay of $10/hour (Doc. 331-6 at 4 (Decltn. Combs)), 

which (if applicable) would have been the very same starting hourly rate as Lafiette. 

As for Justin Hatfield, the record reveals that he was hired on January 2, 2007 as a 

Fabrication Apprentice at an unknown starting hourly rate. (Doc. 295 at 15 (Exhibit 105-

Sealed); Doc. 331-6 at 3 (Decltn. Combs)). Hatfield earned $12.50/hour as of February 26, 2007 

(over seven (7) weeks later). (Doc. 295 at 15 (Exhibit 105-Sealed)). However, Lafiette has 

submitted no evidence as to Hatfield’s starting rate (i.e., that he was hired as a Fabrication 

Apprentice at $11/hour). Additionally, Hatfield requested a starting pay of $15/hour (Doc. 331-6 

at 3 (Decltn. Combs); Doc. 331-6 at 25 (Employment Application)), whereas Lafiette only 

requested “starting pay” (Doc. 331-6 at 5 (Employment Application)). 

 Thus, Austal’s motion for summary judgment as to these proposed comparators, for 

Lafiette’s pay claim, is GRANTED.

B. Promotion

 Lafiette alleges that he was denied promotions which were given to Caucasian coworkers Kenneth Parnell and Jeremy Donald.10 Specifically, Lafiette contends that Parnell was 

promoted to leadman within four (4) months of being hired in June 2007, when Lafiette had been 

 10 Lafiette also references Jeffrey Goodwin, Nicholas May and Justin Hatfield as receiving 

promotions, in his Opposition. (Doc. 306 at 11). However, in doing so, Lafiette does not contend that he 

was denied promotions which were given to these individuals, but rather he simply alleges that they 

received promotions at certain times (i.e., sooner than Lafiette received his promotions). 

Case 1:08-cv-00155-KD-N Document 513 Filed 10/13/11 Page 20 of 26
21 

working at Austal for 11⁄2 years at that time. (Doc. 209-1 (Dep. Lafiette at 81)). Lafiette testified 

that he thought Parnell’s work experience was that he “came from a sawmill[]” and was a Trades 

Assistant before being promoted. (Doc. 331-2 (Dep. Lafiette at 93); Doc. 285-13 (Dep. Lafiette 

at 94)). Lafiette expressed his interest in becoming a leadman to Dane Tomberlin, his supervisor, 

4-5 times. (Doc. 285-13 (Dep. Lafiette at 95-96)). 

 Parnell later took another position and Jeremy Donald was named lead man. (Doc. 209-1 

(Dep. Lafiette at 98-100)). Lafiette acknowledges that Donald had been working at Austal longer 

than he had. (Id. (Dep. Lafiette at 100-101)). Lafiette did not complain to management or 

anyone else about Donald’s selection for lead man because “they wouldn’t let me come up 

there...they [HR Manager] always would say you have to have your supervisor’s permission.” 

(Id. (Dep. Lafiette at 103)). 

 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) (unpublished)). 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 

Case 1:08-cv-00155-KD-N Document 513 Filed 10/13/11 Page 21 of 26
22 

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). 

 Austral contends that Lafiette is unable to establish a case of discrimination because he 

has failed to provide any evidence concerning his proposed comparators. Austal explains that 

Lafiette has failed to identify Caucasian employees who are “nearly identical” in all relevant 

respects including experience, background, and disciplinary history. (Doc. 181 at 18-19). 

 As to the prima facie case, Austal conflates the prima facie requirements of a 

discriminatory pay claim with those for 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...”) 

(unpublished). 

 The Court finds that Lafiette has established a prima facie case. Thus, the Court 

considers Austal’s reason for promoting Donald and Parnell to the lead man or step-up 

supervisor positions over Lafiette, that Lafiette was less qualified than either Donald or Parnell 

based on work experience. As support, Austal relies upon the Declaration of its Rule 30(b)(6) 

representative which provides that Parnell was more qualified than Lafiette because he was a 

Fitter and also an Accuracy Control Inspector. (Doc. 209-2 at 8 (Decltn. Lindley)). In contrast, 

Lafiette was working “in the less qualified position of Trades Assistant.” (Id.) Thus, Austal has 

Case 1:08-cv-00155-KD-N Document 513 Filed 10/13/11 Page 22 of 26
23 

articulated a non-discriminatory reason. Lafiette has not submitted sufficient evidence to support 

that this reason is a pretext for unlawful discrimination. As such, Austal’s motion for summary 

judgment, as to this promotion claim concerning the position given to Parnell, is GRANTED. 

 When Austal promoted Donald, according to its Rule 30(b)(6) representative, Donald 

was more qualified than Lafiette because he was already serving as a step-up supervisor on 

another crew and thus had prior experience that Lafiette did not. (Doc. 209-2 at 8 (Decltn. 

Lindley)). Additionally, Donald’s employment application reveals that in his prior job before 

Austal, he worked as a Foreman for almost five (5) years at a concrete company, he had 

graduated from high school, and he had attended Troy State for two (2) years of college. (Doc. 

331-6 at 34-35). Austal’s stated reasons for promoting Donald over Lafiette, “are not implausible 

or inconsistent and might motivate a reasonable employer.” Sridej v. Brown, 361 Fed. Appx. 31, 

35 (11th Cir. 2010) (unpublished) (citing Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 

2000)). See also Cofield v. Goldkist, Inc., 267 F.3d 1264, 1268-69 (11th Cir. 2001) (affirming 

summary judgment in favor of employer who promoted candidate it believed was more 

qualified); Clark v. Huntsville City Bd. of Educ., 717 F.2d 525, 527 (11th Cir. 1983) (stating that 

“[t]he defendants successfully rebutted the [prima facie] presumption through evidence that they 

selected [the successful applicant] due to his superior qualifications for the position[]”). Lafiette, 

then, must prove that Austal’s proffered reason is pretextual by showing that the disparities 

between his qualifications and those of Donald are “of such weight and significance that no 

reasonable person, in the exercise of impartial judgment, could have chosen the candidate 

selected over the plaintiff.” Drake-Sims v. Burlington Coat Factory Warehouse of Ala., Inc., 330 

Fed. Appx. 795, 803 (11th Cir. 2009) (unpublished) (citing Brooks v. County Comm'n of 

Case 1:08-cv-00155-KD-N Document 513 Filed 10/13/11 Page 23 of 26
24 

Jefferson County, Ala., 446 F.3d 1160, 1162 (11th Cir. 2006)). See also e.g., Sridej, 361 Fed. 

Appx. at 34 (citing Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006)). Lafiette has not presented 

any evidence showing that Austal’s articulated reasons for promoting Donald over him were 

pretextual. Chapman, 229 F.3d at 1030 (stating that, to show pretext, plaintiff must rebut “head 

on” employer's proffered non-discriminatory reasons). As such, Austal’s motion for summary 

judgment, as to Lafiette’s failure to promote claim for the position given to Donald is 

GRANTED.

 C. Training

 To establish a prima facie case of discriminatory denial of training, a plaintiff must show 

that: 1) he is a member of a protected group; 2) the employer provided training to its employees; 

3) he was eligible for training; and 4) he was not provided training under circumstances giving 

rise to an inference of discrimination (i.e., that the plaintiff was denied training given to other 

similarly situated employees who were not members of the protected group). See, e.g., Newman 

v. Career Consultants, Inc., 470 F. Supp. 2d 1333 (M.D. Ala. 2007). 

 Lafiette alleges that he was denied welding and blueprint training at Austal. Specifically, 

Lafiette asked his supervisor Chris Robinson for welding and blueprint training which was 

denied and given instead to Caucasian co-workers “Brad,” Bodiford, Parnell and Myers. (Doc. 

37 at 81 at ¶¶392-394; Doc. 306 at 10; Doc. 209-1 (Dep. Lafiette at 80-81); Doc. 285-13 (Dep. 

Lafiette at 83)). Lafiette asked Robinson about 6-7 times when he would be allowed to go to 

training. (Doc. 209-1 (Dep. Lafiette at 81)). Robinson always told Lafiette “well, we’ll get to 

that later[]” or that “he’d check on it.” (Id. (Dep. Lafiette at 81); Doc. 285-13 (Dep. Lafiette at 

86)). Lafiette wanted the welding training so that he could pass the welding test and be certified 

Case 1:08-cv-00155-KD-N Document 513 Filed 10/13/11 Page 24 of 26
25 

as a B-Class welder. (Doc. 285-13 (Dep. Lafiette at 86)). 

 At the outset, the record reveals no information concerning “Brad” and thus, Lafiette has 

failed to establish even that Brad is outside of his protected class. The remaining alleged 

comparators were in different positions than Lafiette; Myers was a welder, Parnell was a fitter 

and Bodiford was a Trades Assistant. As to Bodiford, Lafiette admitted to a difference in job 

position in his deposition testimony, but testified that he was a Trades Assistant at the time he 

requested training (suggesting that he and Bodiford were in the same position). (Doc. 285-13 

(Dep. Lafiette at 83-84)). The record reveals, however, that Lafiette was not a Trades Assistant 

until March 2008. (Doc. 209-2 at 8 (Delctn. Lindley)). Moreover, Lafiette first asked his 

supervisor Robinson for welding training some time after November 13, 2006 (Doc. 285-13 

(Dep. Lafiette at 80)), such that Bodiford would have been employed for approximately four (4) 

months’ time as a Trades Assistant (at that time, Lafiette would have still been in the apprentice 

program). As such, Lafiette has not established that Bodiford was trained for duties and tasks 

which were even available to a Fabrication Apprentice. See, e.g., Newman, 470 F. Supp. 2d at 

1347. See also e.g., McCann, 526 F.3d at 1373 (prima facie case of disparate treatment requires 

plaintiff to show that “employer treated similarly situated [white] employees more favorably”) 

(citation omitted); Alansari v. Tropic Star Seafood Inc., 2010 WL 2853652, *1 (11th Cir. Jul. 22, 

2010) (“A plaintiff fails to establish a prima facie disparate treatment case if he fails to show that 

he was treated less favorably than a similarly-situated person outside his protected class[]”); 

Holifield, 115 F.3d at 1564 (plaintiff's “opinion [that he was discriminated against], without 

more, is not enough to establish a prima facie case of race discrimination”). As such, Austal’s 

motion for summary judgment, as to this denial of training claim, is GRANTED.

Case 1:08-cv-00155-KD-N Document 513 Filed 10/13/11 Page 25 of 26
26 

VI. Conclusion

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

GRANTED as to all claims. 

DONE and ORDERED this the 13th day of October 2011. 

 /s/ Kristi K. DuBose 

 KRISTI K. DuBOSE 

 UNITED STATES DISTRICT JUDGE 

Case 1:08-cv-00155-KD-N Document 513 Filed 10/13/11 Page 26 of 26