1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

JERMAINE ROBERSON, 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 partial1

 motion for summary judgment 

(Docs. 194, 196, 203), Plaintiff’s Opposition (Doc. 314) and Defendant’s Reply (Doc. 339). 

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.2

 (Doc. 

1). Jermaine Roberson (“Roberson”) asserts claims for hostile work environment and 

discrimination (pay and promotions) based on race in violation of Title VII and 42 U.S.C. § 

1981. (Doc. 37 at 109-116).3

 1 Austal did not specifically move for summary judgment on Roberson’s failure to promote claim 

(Doc. 37 at 112 at ¶¶572, 575). But even if Austal’s motion could be construed otherwise, Austal did not 

adequately address Roberson’s contention relating to the promotion received by Chris Johnson.

2 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.

3 Originally, Roberson alleged a separate claim for retaliation (Doc. 37 at 113-115 at ¶¶ 578, 586-

587, 589-591), constructive discharge (Id. at 109-110, 113-114 at ¶563, 582-583), denial of equipment 

(his own welding machine) (Id. at 112 at ¶572), training (Id. at 112-113, 115 at ¶¶574, 579-581, 594) and 

evaluations (Id. at 113 at ¶¶579-580). Roberson did not address these claims in response to Austal’s 

motion and moreover, in his opposition brief Roberson now specifically represents that he “is pursuing

claims against Austal for only hostile work environment and discrimination on the basis of race in regards 

(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. 196 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. Roberson’s Employment

 Roberson began working for Austal on July 5, 2006 as a Fitter Trades Assistant 

(“Fitter/TA”) in the Aluminum Fabrication Department, at the rate of $14/hour. (Doc. 295 at 31 

(Exhibit 105-Sealed); Doc. 203-1 (Dep. Roberson at 54-56, 194); (Doc. 203-1 at 71, 73); Doc. 

203-2 (Decltn. Lindley at 10)). Roberson received three (3) pay raises dated November 1, 2006 

(to $14.50/hour), July 2, 2007 (to $15.50/hour) and October 9, 2007 (to $16.50/hour). (Doc. 295 

at 31 (Exhibit 105-Sealed); Doc. 203-1 at 71, 73)). Roberson was employed at Austal until 

March 12, 2008; Roberson contends that he was constructively discharged, whereas Austal 

asserts that his FMLA leave expired without him returning to work. (Id.; Doc. 203-1 (Dep. 

 

to pay and promotions” under Title VII and Section 1981. (Doc. 314 at 2 (emphasis added)). 

Accordingly, the Court construes Roberson’s intentional exclusion of his retaliation, constructive 

discharge, denial of equipment (his own welding machine), training and evaluations claims as a 

concession of these claims. Thus, it is ORDERED that Austal’s motion for summary judgment, as to 

Roberson’s retaliation constructive discharge, denial of equipment (his own welding machine), training 

and evaluations claims, is GRANTED. 

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

litigation. (Doc. 366). 

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Roberson at 65-66, 68, 73, 75, 277-278); Doc. 339-1). 

II. Standard of Review

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

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

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

provides as follows: 

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

genuinely disputed must support the assertion by: 

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

depositions, documents, electronically stored information, affidavits or 

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

admissions, interrogatory answers, or other materials; or 

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

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

evidence to support the fact. 

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

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

in a form that would be admissible in evidence. 

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

may consider other materials in the record. 

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

oppose a motion must be made on personal knowledge, set out facts that would be 

admissible in evidence, and show that the affiant or declarant is competent to 

testify on the matters stated. 

FED.R.CIV.P. Rule 56(c) (Dec. 2010). Defendant, as the party seeking summary judgment, bears 

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

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

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

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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

 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 

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contained in the untimely charge. Id. 

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

February 26, 20074 and it was “received” on February 28, 2007. (Doc. 203-3). Calculating from 

the February 28, 2007 date, Austal contends that “[a]ll alleged acts” occurring between 

Roberson’s hire date of July 5, 2006 and September 1, 20065

 (180 days prior to February 28, 

2007), are time barred under Title VII. (Doc. 196 at 7). 

 Roberson 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. 314 at 14-15 (citing McKenzie v. Citation Corp., LLC, 2007 WL 1424555 (S.D. Ala. 

2007)). Roberson 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): 

 4 The EEOC Charge is signed 2/26/06, but this appears to be a scrivener’s error as the allegations 

encompass a timeframe after February 2006 and the “latest date discrimination took place” is defined as 

02/26/07. (Doc. 203-3 at 1). Also, the EEOC’s stamp bears the year 2007.

5 Austal actually uses the date of August 30, 2006; however, 180 days prior to the date the EEOC 

charge was “received’ (the filing date), is September 1, 2006.

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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. 

Roberson’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 this hostile work environment claim is DENIED. 

Concerning all other “any alleged acts” for which Austal has moved for summary 

judgment – disparate treatment (starting pay and pay raises) – the Court finds as follows. As for 

Roberson’s pay claim, this claim is tied to Roberson’s starting salary when hired ($14/hour) and 

the pay raises that he received (or did not) thereafter, as compared to that of certain Caucasian 

employees, and thus is framed by Roberson as a discriminatory compensation decision claim 

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

employment decision).6

 Accordingly, Roberson’s Title VII pay claims are not untimely and 

Austal’s motion for summary judgment based on the untimeliness of this claim is DENIED. 

 6 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 Roberson’s failure to promote 

claims (claims for which Austal did not move for summary judgment). (Doc. 339 at 13-14). The 

Court will not consider these “new” claims. Austal cannot assert new allegations or arguments 

raised for the first time on Reply. As set forth recently 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. 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 

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

Cir. 2009) (unpublished).7

 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) Roberson’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) Roberson makes no allegations and presents no evidence that 

the allegedly hostile environment unreasonably interfered with her ability to work on a day-today basis; 3) Austal maintained a policy establishing how an employee should report 

discriminatory conduct, but Roberson failed to report certain conduct; and 4) Austal took 

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

 

 7

 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. Severe or Pervasive8

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. 

 After consideration of the evidence presented by Roberson, the Court finds that there is 

sufficient evidence, if believed by a jury, that Roberson subjectively perceived his work 

 8 Roberson also relies on the allegations of the other 22 plaintiffs (Doc. 314 at 2-4, 17, 20-22, 24-

25, 28, 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 Roberson testified that he was aware. 

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environment to be racially hostile. Moreover, the Court finds when viewing the facts in the light 

most favorable to Roberson, that there is an issue of fact whether the harassment was severe and 

pervasive. The Court also finds that there are issues of fact remaining as to whether Austal is 

responsible for the alleged hostile environment. Accordingly, Austal’s motion for summary 

judgment is DENIED on this claim. 

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

 Roberson 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, Roberson alleges that: 1) Caucasian employees who held the same initial job, 

Trades Assistant – namely Chris Johnson, Kenneth Allison, Michael Scarborough and William 

Rowell, were hired at a hiring starting hourly wage; and 2) Caucasian employees received raises 

sooner than he did and in higher amounts, including Chris Johnson, Kenneth Allison and 

William Rowell. 

 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 

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plaintiff must establish a prima facie case of intentional race discrimination.9

 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. 

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

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

 9 "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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were not similarly situated in all relevant respects). 

Roberson does not submit any evidence or argument regarding subjective similarity of 

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

Roberson 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 Caucasian employees who held jobs with identical titles (i.e., Trades Assistant in the 

Aluminum Fabrication Department). 

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 

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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 

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 Roberson has submitted evidence of basic job similarities, 

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

A. Starting Pay: Initial Hourly Wage

 Roberson alleges that Caucasian co-workers Chris Johnson, Kenneth Allison, Michael 

Scarborough and William Rowell, were hired in as Trades Assistant in the Aluminum 

Fabrication Department at a starting hourly wage that was higher than his initial starting hourly 

wage ($14/hour). (Doc. 203-1 (Dep. Roberson at 103-105); Doc. 285-20 (Dep. Roberson at 227-

228)). As noted supra, Roberson was hired on July 5, 2006, as a Fitter/Trades Assistant in the 

Aluminum Fabrication Department, at the initial starting wage rate of $14/hour. (Doc. 295 at 31 

(Exhibit 105-Sealed)). Roberson contends that “white Austal employees with similar or identical 

job titles or tasks earned more.” (Doc. 314 at 38). 

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 Roberson’s initial pay rate claim regarding Allison (hired on 7/31/06), Johnson (hired on 

2/27/06), Scarborough (hired on 7/24/06) and Rowell (hired on 5/7/07),10 is not supported by the 

evidence. Specifically, Roberson cites Exhibit 106 as evidence of starting pay for comparators 

Allison, Scarborough and Rowell. A review of Exhibit 106 (which purports to be a summary of 

pay data contained in Exhibit 105) shows no support for Roberson’s assertion of starting pay for 

these comparators. Additionally, Roberson has previously explained that Exhibit 106 is a 

summary of pay data contained in Exhibit 105.11 (Doc. 353 at 17). Exhibit 105 does not indicate 

these proposed comparators’ starting pay. 

 Roberson has submitted no other evidence establishing that Allison was initially hired at 

the rate of $12.50/hour. (Doc. 314 at 9). The record reveals also that Scarborough was initially 

hired at a starting wage of $13.50/hour (Doc. 339-6 at 13 (Employment Application)), and thus, 

he was hired at a lower starting pay rate than that of Roberson ($.50/hour lower). And the only 

evidence Roberson cites to, for the claim that Johnson was hired at the initially starting pay rate 

of $14/hour, is Roberson’s own deposition testimony, which is based on inadmissible hearsay. 

(Doc. 203-1 (Dep. Roberson at 190); Doc. 285-20 (Dep. Roberson at 228)). In fact, the only 

proposed comparator for which the evidence definitively establishes an initial starting rate higher 

than that of Roberson is Rowell, who was hired at a starting rate of $15/hour. (Doc. 339-6 at 9 

(Employment Application)). 

 10 (Doc. 295 at 19, 32, 33 (Exhibit 105-Sealed)).

11 As noted in the Order regarding Earaton Adams (Doc. 364 at 19 at note 14), the Court 

previously ruled that Doc. 286-3 (Exhibit 105 (Sealed)), also filed as Doc. 295, can be reduced to a form 

admissible at trial and thus Austal’s objection to Exhibit 105 was overruled; however, to the extent 

Exhibit 106 has no foundation in Exhibit 105, Austal’s objection was sustained. 

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 However, there is no evidence that any of the proposed comparators were hired for the 

same initial starting job position of Fitter/Trades Assistant in the Aluminum Fabrication 

Department. Rather, the record reveals that while Allison “applied for a Trades Assistant/Welder 

position” (Doc. 339-6 (Decltn. Combs at 4)), the only position indicated in connection with 

Allison is the job title of Fitter A-Class in Fabrication12 and there is no information as to his 

starting position. (Doc. 295 at 2 (Exhibit 105-Sealed)). Similarly, there is no evidence that 

Scarborough was hired as a Trades Assistant; instead, the record reveals only that he is presently 

a Fitter A-Class in Fabrication. (Id. at 33 (Exhibit 105-Sealed)). Likewise, Rowell was initially 

hired as a Trades Assistant in HVAC (not Fabrication).13 (Id. at 32). Moreover, there is no 

evidence that Johnson was initially hired as a Trades Assistant; the record reveals only that he is 

presently a Fitter in the Fabrication. (Id. at 19). And no evidence has been presented that 

Roberson’s starting position as Trades Assistant in the Aluminum Fabrication Department, and a 

Fitter A-Class in the Fabrication Department, a Fitter in the Fabrication Department, and a 

Trades Assistant in the HVAC Department, are substantially similar jobs. 

 It cannot be said then, that any of these proposed comparators are substantially similar to 

Roberson in terms of job duties, particularly as Roberson has failed to present any evidence of 

the similarities of the duties for these job positions in different departments. This lack of 

evidence undermines Roberson’s starting hourly rate claims as to Allison, Johnson, Scarborough 

and Rowell, as within each department pay rates are based on a number of factors including 

 12 The record reveals that there are two (2) Fabrication Departments (Aluminum Fabrication and 

Aluminum Components) at Austal. (Doc. 283-48 at 4 (Austal’s 3/7/07 EEOC Statement)). 

13 The record reveals that the HVAC job positions are within the Fit Out Department. (Doc. 

283-48 at 4 (Austal’s 3/7/07 EEOC Statement)).

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experience (at Austal or elsewhere), education/training, productivity (quantity and quality), and 

attendance and “[t]he difference in pay scales is well known to the employees[]” as some 

employees have transferred from one department to another to qualify for higher pay or different 

working conditions. (Doc. 283-38 at 4-5, 11 (Austal’s 3/3/07 EEOC Statement)). Indeed, 

“Austal established different job titles for its employees – such as Trades Assistant, Fitter, 

Welder, etc. – due to the different skill sets, training, experience, and qualifications needed to 

perform the job duties that are unique to each job title.” (Doc. 339-6 (Decltn. Combs at 3) 

(emphasis added)). Even when the threshold focus is only on job similarity, Roberson must still 

establish basic job similarities between his job and that of his purportedly higher paid 

comparators. Roberson has failed to do this because he “relies merely on a comparison of 

generic job titles [and inaccurately so relies at times] and points to...no evidence regarding the 

actual job functions and the skill and effort required to perform those functions.” See, e.g., 

Hooper v. Total System Servs., Inc., 2011 WL 2604752, *8 (M.D. Ga. Jun. 30, 2011). See also

e.g., Mulhall, 19 F.3d at 590 (finding that a plaintiff must show “equal work on jobs the 

performance of which requires equal skill, effort, and responsibility[]”). In sum, Roberson has 

not established what he asserts is the only requirement -- “job similarity.” Accordingly, Austal’s 

motion for summary judgment on Roberson’s starting pay rates claims as compared to Johnson, 

Allison, Scarborough and Rowell, is GRANTED.

 B. Pay Raises

 Roberson alleges that Caucasian co-workers received raises sooner than he did, and in 

higher amounts, including Chris Johnson, Kenneth Allison and William Rowell. Specifically, 

Roberson alleges that he only received a $.50/hour raise “[w]hen everybody else got $2.00 [per 

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hour] raise.” (Doc. 203-1 (Dep. Roberson at 160, 190, 226); Doc. 285-20 (Dep. Roberson at 

161-162)). Roberson complained to supervisor Guyette, who responded “it was up to Scott 

[Pearson].” (Id. (Dep. Roberson at 162-163)). Roberson asked Guyette to talk to Pearson and he 

said he would “see what he can do[]” and Roberson “[n]ever heard anything[]” except Pearson 

told him “that’s all I’m going to get right now.” (Id. (Dep. Roberson at 163)). On another 

occasion, Roberson assets that he realized that Chris Johnson was making $17/hour when he was 

only making $14.50/hour; thus, he complained to his supervisor Wescovich and coordinator 

Kevin Lewis, who both in response, “started laughing.” (Id. (Dep. Roberson at 165-168)). 

However, Roberson testified as well, “[t]he money didn’t mean anything to me. It was about the 

learning.” (Id. (Dep. Roberson at 168)). 

 As detailed supra, Roberson has submitted no evidence that these proposed comparators 

were hired at the same time for the same position in the same department yet received raises 

sooner than he did and in higher amounts (as measured from their initial starting pay rates). 

Accordingly, Austal’s motion for summary judgment on Roberson’s disparate pay claim 

concerning pay raises is GRANTED.

VII. Punitive Damages

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

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

it is ORDERED that Austal’s motion for summary judgment regarding Roberson’s punitive 

damages claim is DENIED as his request for punitive damages is CARRIED TO TRIAL. 

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VIII. Conclusion

 Accordingly, it is ORDERED that Austal’s partial14 motion for summary judgment is 

DENIED as to Roberson’s hostile work environment claims; GRANTED as to Roberson’s 

disparate pay claims; and GRANTED as to Roberson’s retaliation claim, constructive discharge, 

denial of equipment (welding machine), training, and evaluations claims. Roberson’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 

 14 See supra Footnote 1.

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