1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

RON LAW, 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.

182, 183), Plaintiff’s Opposition (Doc. 308), Defendant’s Reply (Doc. 343), and the Eleventh 

Circuit’s remand (Doc. 821).

I. Factual Background1

On March 20, 2008, multiple Plaintiffs initiated this action against Austal for legal and 

equitable relief to redress unlawful discrimination and harassment on the basis of race. (Doc. 1). 

Plaintiff Ron Law (“Law”) asserts claims for hostile work environment based on race in 

violation of Title VII and 42 U.S.C. § 1981. (Doc. 37 at 83-87).

2

On May 31, 2011, this Court issued summary judgment in favor of Austal as to Law’s

claims for hostile work environment, retaliation, and training. (Docs. 379, 720). Law’s

summary judgment ruling was appealed (USCA#12-11507-EE) (Doc. 753), and on June 17, 

2014, the Eleventh Circuit vacated the summary judgment order as to the claim of a racially 

 1 At the summary judgment stage, the facts are taken in the light most favorable to the non-movant. Tipton 

v. Bergrohr GMBH–Siegen, 965 F.2d 994, 998-999 (11th Cir. 1992). The “facts, as accepted at the summary 

judgment stage of the proceedings, may not be the actual facts of the case.” Priester v. City of Riviera Beach, 208 

F.3d 919, 925 n. 3 (11th Cir. 2000).

2 All other claims have been previously dismissed, abandoned, or judgment granted for the defendant.

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hostile work environment. (Doc. 821 at 31). The Eleventh Circuit found that a reasonable jury 

could find that Law’s work environment was objectively hostile, and remanded his claims of a 

racially hostile work environment with instructions for this Court “to determine whether Austal 

is entitled to summary judgment on the ground that it was not directly or vicariously liable for 

the harassment or whether the employees’ claims should proceed to trial.” (Id. at 3, 31, 38). The 

mandate issued August 8, 2014. (Doc. 826). 

A. Austal

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

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

Mobile, Alabama. (Doc. 183 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. Law’s Employment

Ron Law began working for Austal on October 31, 2005 as a Fabricator in the Aluminum 

Department at the rate of $15/hour. (Doc. 204-1 (Dep. Law at 32-35); Doc. 204-1 at 51 (Decltn. 

Lindley); Doc. 204-2 at 2). On June 25, 2008, Law failed to report to work for three (3) days and 

was terminated. (Doc. 204-1 (Dep. Law at 35-37); Doc. 204-1 at 51 (Decltn. Lindley)).

C. Austal’s Anti-Harassment & Non-Discrimination Policy

Austal submitted evidence of two (2) anti-harassment and non-discrimination policies: an 

“April 2006 Issue F” policy, and a “November 2007” policy. (Doc. 204-1 at 44-45 and note 1 

(Decltn. Lindley); Doc. 204-1 at 78-79, 92 (the April 2006 Issue F policy and the November 

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2007 Issue A policy)). However, there were four (4) policies in effect during Law’s 

employment: the “April 2004 Issue D” policy, the “November 2005 Issue E”, April 2006, and 

the November 2007 policies.

The April 2004, November 2005, April 2006 policies all “urge” employees to report 

complaints to his/her supervisor or, if not comfortable doing so, to the Departmental Manager:3

Any employee suspecting a violation of this policy, or who in any way feels

uncomfortable with the actions of Company Supervisors, employees or outsiders is 

urged to inform his or her Supervisor. If for any reasons the employee does not feel

comfortable discussing the situation with his or her immediate Supervisor, he or she 

should report the matter to the Departmental Manager...Supervisors are required to 

report suspected harassment and any allegations of harassment to the Departmental 

Manager.

(Doc. 283-55 at 11, Doc. 283-56 at 25, Doc. 204-1 at 78-79 (emphasis in original)). (Doc. 284-3

(Dep. Lindley4 I at 238-240, 245-246) (testifying that such was the procedure as to the 2004, 

2005 and 2006 policies, and confirming that nothing in those policies identifies HR as an avenue 

for complaints). From November 2007 forward, employees “should report” to both to the 

supervisor and the Department Manager/Coordinator before even being allowed to report to HR:

1.3 Reporting an Incident of Harassment or Workplace Violence

It is the employee's responsibility to report any incident of harassment or workplace 

violence. The employee should report any incident of this nature to his/her supervisor. If 

the employee is not comfortable reporting the incident to his/her supervisor you may talk 

to the department coordinator or manager. If you need to talk with someone after you 

have completed both steps, you may contact the Human Resources Department. Any 

reported allegations of harassment or workplace violence will be Investigated 

confidentially and promptly.

(Doc. 204-1 at 78-79, 92 (emphasis added)). No evidence has been submitted to the Court of 

 3 Based on the record and as indicated by Austal, the Departmental Managers (or Coordinators) manage 

specific departments, such as Aluminum Fabrication, and within those departments, there are Supervisors who 

supervise the employees working with said department. (Doc. 283-48 (Austal’s 3/7/07 EEOC Position Statement)).

4 Austal’s Rule 30(b)(6) representative and HR Benefits Coordinator.

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Law having received and/or signed all of the policies in effect while he was employed -- the 

April 2004, November 2005, April 2006 or November 2007 policies. The evidence submitted 

indicates only that Law was informed that Austal was an equal opportunity employer and that he 

signed an acknowledgement after he was hired; however, he did not receive handbooks/booklets

which contained the anti-harassment/anti-discrimination policy. (Doc. 204-1 (Dep. Law at 31, 

55); Doc. 285-14 (Dep. Law at 48-51)). Law also does not recall receiving a copy of Austal’s 

policy regarding equal employment opportunity, but thinks he did receive one, at some point. 

(Doc. 285-14 (Dep. Law at 53-55)).

Law understood the procedure at Austal as “if you had a problem[]” you could report it to 

“[y]our supervisor. They had a chain of command, that would be the first step[]” and if you had a 

problem with him “you would go a step further, higher than him [the coordinator].” (Doc. 204-1 

(Dep. Law at 52-53)). “That’s about as far as I thought you could...take it[,]” and reporting to 

HR “never was discussed or understood that way.” (Id. (Dep. Law at 53)).

Regarding his work environment, Law testified that “[t]he whole job was hostile[]” and 

he was discriminated against by “being treated inhumane[]” -- “treated like you are 

nothing...just treated worse than you would treat an animal, I would figure, from the way I felt.” 

(Doc. 204-1 (Dep. Law at 111); Doc. 285-14 (Dep. Law at 61)). Law recalls hearing about a 

Caucasian employee “saying that where he from, they hang – hang niggers, or something to that 

manner[;]” that employee was fired he “think[s]” for saying the comment. (Id. (Dep. Law at 

109-110)). That was the only time he heard the word “nigger.” (Id. (Dep. Law at 110)). Law 

once heard a lead person or supervisor ask another supervisor for help lifting something and he 

“told him to send him some monkeys,” which he felt referred to African Americans (Id. (Dep. 

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Law at 62-64)). Law did not report the comment. (Id.) Law was told by a co-worker that 

supervisor Tim Clements acted like a monkey by climbing and swinging through the rafters on 

the ship and making monkey sounds; employees complained about Clements. (Doc. 285-14 

(Dep. Law at 111-112)). When Law asked his supervisor Scott Pearson whether any black 

people live in Australia, he responded yes, Australian Aborigines, who are cannibals -- “they eat 

people.” (Id. (Dep. Law at 112-113)). Law saw supervisor Clements kick African American coworker Jermaine Roberson as he walked by, which he thought was racist, but he did not 

complain or report it. (Id. (Dep. Law at 113-117)).

Law was subjected to displays and/or the wearing of the Confederate flag by two (2) coworkers who wore the imagery “on a few occasions” on shirts or belt buckles. (Doc. 204-1 

(Dep. Law at 128-129); Doc. 285-14 (Dep. Law at 130)). “[I]t didn’t bother me, one way or the 

other....” (Id. (Dep. Law at 129)). Yet Law simultaneously testified that he found the 

Confederate flag imagery offensive “[b]ecause, to me, from where I come from, it promotes 

slavery.” (Doc. 285-14 (Dep. Law at 130)). 

Law saw racial slurs in graffiti on bathroom walls, mirrors and stalls. (Doc. 204-1 (Dep.

Law at 112, 118-120, 125-127); Doc. 285-14 (Dep. Law at 121)). He did not complain about or 

report the graffiti, but knows other African American co-workers did (Beverly Thomas and 

Carolyn Slay). (Id.) The racial graffiti included: “how many niggers do you see around here 

wearing white hats,” “White Power” with a picture of a hooded Klansman, “see niggers travel in 

packs just like monkeys,” and “why don’t niggers use aspirin, because they don’t want to pick 

the cotton out of the top.” (Id.) Law also saw racial graffiti on the ships at Austal: racial slurs 

written on the aluminum “stuff like that[]” but he “couldn’t tell...how many times.” (Doc. 204-1 

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(Dep. Law at 124-127); Doc. 285-14 (Dep. Law at 123-125)). The racial graffiti on the ships 

was sanded off. (Id.) Law was present at safety meetings where African American employees 

complained to supervisors about racial graffiti. (Doc. 285-14 (Dep. Law at 167-169)). As to 

why he never complained, he testified “I mean, what for? It wasn’t going to change anything in 

the way I felt.” (Id.) According to Law, at some point, the bathroom graffiti was painted over. 

(Doc. 204-1 (Dep. Law at 120, 126-127)). 

Austal alleges that they counseled their supervisors regarding the graffiti. (See, e.g., Doc. 

204-2 (Dep. Combs at 111, 126) (Austal “discussed it with our teams and told them graffiti of 

any kind, racial, sexual, or any kind is not tolerated[,]” adding it was discussed “with all the 

supervisors” and that the supervisors “have been told to discuss it with all of their people[]”). 

However, Combs does not really know if that ever occurred, noting that he saw graffiti in mid2009. In August 2007, Austal responded to complaints by painting everything black. (Doc. 285-

2 (Dep. Browning at 16, 110)). Yet the graffiti continued as the paint transformed the bathrooms 

into a chalkboard making the graffiti show up better. (Doc. 284-4 (Dep. Lindley II at 95-96, 166-

168, 188-190, 195-196, 202-203); Doc. 284-5 (Dep. Lindley III at 254); Doc. 284-11 (Dep. 

O’Dell at 74-75); Doc. 284-7 (Dep. Friedlieb I at 84)).

There were no investigations, and no policy was implemented as to precisely how to 

document the graffiti and/or how to prevent it. (Doc. 285-2 (Dep. Browning at 16, 110); (Doc. 

284-3 (Dep. Lindley I at 196); (Doc. 284-7 (Dep. Friedlieb I at 49, 52, 82, 84, 86)). Austal’s 

CEO testified that there were no discussions with HR about prevention of the graffiti apart from 

painting everything black. (Doc. 285-2 (Dep. Browning at 110, 113-114, 117)). Austal’s HR

Coordinator testified that there has been a constant problem with racially offensive and 

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threatening graffiti since 2005, and while senior management and HR are aware of it, it was still 

ongoing as of 2009. (Doc. 284-4 (Dep. Lindley II at 86-89, 96, 101-102, 112-114, 123-124, 188-

190, 195-196, 202-203); Doc. 284-5 (Dep. Lindley III at 254). HR Manager Carver testified that 

he does not recall any investigation into the graffiti or Austal issuing any memo or statement 

about it to employees. (Doc. 284-10 (Dep. Carver II at 62-63, 65-66, 70)). Carver also does not 

recall whether between 2004-2007 the issue of racial graffiti was ever formally addressed by

Austal or whether Austal took any action to determine who was responsible for the graffiti. (Id.) 

According to Carver, “there’s really no excuse....that I didn’t send out a document to everybody 

and say, look this is not tolerated, I don’t care what you say, there’s really no excuse for it. I’ll 

admit that.” (Id. (Dep. Carver II at 81-82)). 

Law is aware of three (3) nooses found at Austal, which he “[a]bsolutely” found racially 

offensive. (Doc. 204-1 (Dep. Law at 163-165, 171-172)). Law saw one (1) noose hanging from 

the rafters of a ship -- he was shown a photograph of it. (Id.). Law saw a stick figurine with a 

noose tied around its neck and the word “nigger” written on the chest, which he found offensive; 

it was found on a ship by African American co-worker Jermaine Roberson. (Doc. 204-1 (Dep. 

Law at 165-166)). Law did not report the figurine. (Id. (Dep. Law at 166)). As for the third 

noose, Law saw in the Austal breakroom in May 2008. Concerning the May 2008 noose, (Docs. 

283-24, 283-25, 284-2), the City of Mobile was alerted to its presence through an article in the 

Press Register, and while Austal did not issue a memo, statement or email to its employees about 

the noose, Austal investigated and offered a reward for information. (Doc. 204-2 (Dep. Pate at 

152); Doc. 283-26; Doc. 283-27; Doc. 283-28; Doc. 285-2 (Dep. Browning at 7-14, 118-120,

124-125); (Doc. 284-3 (Dep. Lindley I at 255-256); Doc. 284-5 at 59 (Dep. O’Dell at 79)). The 

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noose was also reported to Security, Supervisors, HR and Senior Management; Security and 

O’Dell in HR conducted an investigation but were unable to determine who was responsible. 

(Doc. 284-2; Doc. 284-4 (Dep. Lindley II at 157); Doc. 284-5 at 59 (Dep. O’Dell at 79); Doc. 

284-8 (Dep. Friedlieb II at 145)). However, Austal’s investigation consisted primarily of 

investigating the African American employees who found (and reported) the noose as suspects, 

with a focus on co-worker (and co-plaintiff) Beverly Thomas as having staged the incident. 

(Doc. 284-2; Doc. 284-8 (Dep. Friedlieb II at 163, 168, 170, 183-185, 191-192)).

II. Standard of Review

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

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

R. CIV. P. 56(a) (Dec. 2010). Amended Rule 56(c) governs Procedures, and provides as follows:

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

genuinely disputed must support the assertion by:

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

depositions, documents, electronically stored information, affidavits or 

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

admissions, interrogatory answers, or other materials; or

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

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

evidence to support the fact.

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

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

in a form that would be admissible in evidence.

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

may consider other materials in the record.

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

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

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

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testify on the matters stated. 

FED.R.CIV.P. Rule 56(c) (Dec. 2010).

Defendant, as the party seeking summary judgment, bears the “initial responsibility of 

informing the district court of the basis for its motion, and identifying those portions of ‘the 

pleadings, depositions, answers to interrogatories, and admissions on file, together with the 

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

Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting Celotex Corp. v. 

Catrett, 477 U.S. 317, 323 (1986)). If the nonmoving party fails to make “a sufficient showing 

on an essential element of her case with respect to which she has the burden of proof,” the 

moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. “In reviewing whether 

the nonmoving party has met its burden, the court must stop short of weighing the evidence and 

making credibility determinations of the truth of the matter. Instead, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. 

Bergrohr GMBH-Siegen, 965 F.2d 994, 998-999 (11th Cir. 1992), cert. den., 507 U.S. 911 (1993) 

(internal citations and quotations omitted). 

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

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

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

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

Cir. 2009).5 To establish a prima facie case of hostile work environment and/or racial 

 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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harassment under Section 1981 or Title VII, the plaintiff must prove that: 1) he belongs to a 

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

on a protected characteristic of the employee (such as race); 4) the harassment was sufficiently 

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

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

theory of vicarious or direct liability. See, e.g., Reeves v. DSI Sec. Servs., Inc., 395 Fed. Appx. 

544, 545-546 (11th Cir. 2010); McCann v. Tillman, 526 F.3d 1370, 1378 (11th Cir. 2008); Miller 

v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). See also e.g., Mendoza v. 

Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999). 

The first three (3) prima facie elements of a hostile work environment are satisfied and 

not disputed by the parties. However, as to the remaining elements, Austal contends that: 1)

Law’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) Law

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 Law failed to 

report certain conduct; and 4) Austal took reasonable preventative and corrective/remedial 

measures to prevent a hostile work environment.

To be actionable as severe or pervasive, the harassment “must result in both an 

environment that a reasonable person would find hostile or abusive and an environment that the 

victim subjectively perceive[s]...to be abusive.” Miller, 277 F.3d at 1276 (internal citation and 

quotation marks omitted). In other words, the severe or pervasive element has an objective and 

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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 Law subjectively perceived his work 

environment to be racially hostile. 

As to the fourth element, the objective severity of the harassment, as established by the 

Eleventh Circuit in its remand:

The record presents a genuine dispute of material facts that Law’s work environment was 

objectively hostile. Law worked at Austal for two and a half years, during which he 

observed racially harassing conduct firsthand. He regularly saw racist graffiti in the 

men’s restrooms, and he also saw racial slurs written in the aluminum on the ship where 

he worked. He was one of the employees who saw the noose in the breakroom, and he 

heard about two other nooses. He saw a stick figure with a noose around its neck with the 

slur “nigger” written on it, and he heard from a coworker that a supervisor was “climbing 

around like a monkey through the boat” and “making monkey sounds.” He also saw a 

coworker wear a shirt and belt buckle with the Confederate flag, but only twice. Law 

heard a supervisor request over the work walky-talky that someone “send him some 

monkeys” to help lift heavy items in the shipyard. And he heard a white employee say 

that “where he [is] from, they hang . . . niggers.”

Law raises a disputed issue that the harassment he experienced was frequent and severe. 

Like Pettibone, he frequently saw racist graffiti in the men’s restroom, he discovered the 

noose in the breakroom, and he saw the stick figure with a noose around its neck and the 

caption “niggers.” Law also saw racist graffiti on the ship where he worked, heard a 

supervisor request “monkeys” over the walky-talky, and heard a coworker talk about 

hanging niggers. A reasonable jury could find that his workplace was objectively hostile.

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(Doc. 821 at 20-21).

B. Employer Liability- Faragher/Ellerth Affirmative Defense

With the fourth element satisfied, this Court turns to the fifth element: “...the 

employer[]...[Austal] is responsible for the hostile work environment under...a theory of 

vicarious or direct liability[]”6 unless Austal can avail itself of the Faragher/Ellerth affirmative 

defense. 

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

Ellerth, 524 U.S. 742 (1998), the Supreme Court held that employer liability is automatic when 

the supervisor’s harassment culminates in a “tangible employment action, such as discharge, 

demotion, or undesirable reassignment.” Faragher, 524 U.S. at 807, 808; Ellerth, 524 U.S. at 

762, 763. Where no such action has occurred, “[a]n employer is subject to vicarious liability to a 

victimized employee for an actionable hostile environment created by a supervisor with 

immediate (or successively higher) authority over the employee.” Faragher, 524 U.S. at 807; 

Ellerth, 524 U.S. at 745. But an employer may avoid vicarious liability by raising as an 

affirmative defense that it: 1) exercised reasonable care to prevent and correct promptly any 

harassing behavior, and 2) the employee unreasonably failed to take advantage of any preventive 

or corrective opportunities provided by the employer or to avoid harm otherwise. Faragher, 524 

U.S. at 807, 809; Miller, 277 F.3d at 1278. This is known as the Faragher/Ellerth affirmative 

defense. For an employer to avail itself of this defense and be found not liable, “[b]oth elements 

must be satisfied...the defendant bears the burden of proof on both elements.” Frederick v. 

Sprint/United Mgmt. Co., 246 F.3d 1305, 1313 (11th Cir. 2001) (citations omitted) (emphasis 

 6 Miller, 277 F.3d at 1278.

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added) (holding that factual issues existed regarding employer’s complaint procedure and 

employee’s use of it, precluding summary judgment on Faragher/Ellerth). If, however, neither 

element is satisfied, the employer is liable for the harassment. See supra. See also Joens v. John 

Morrell & Co., 243 F.Supp.2d 920, 933 (N.D. Iowa 2003) (providing a helpful flow chart).

Austal’s liability is automatic if a supervisor’s harassment culminated in a tangible 

employment action as to Law (e.g., discharge, demotion, undesirable reassignment). There is no 

dispute that Law was terminated in June 2008 (according to Law for “missed time”). (Doc. 204-

1 (Dep. Law at 35-38)). In the operative complaint, Law alleged that he was retaliated against 

after complaining of racially discriminatory conduct, and treated differently than Caucasian coworkers because he was denied training. (Doc. 37 at 83-87). Nevertheless, while there is 

evidence of supervisor harassment, on summary judgment Law submitted no evidence of any 

harassment by a supervisor connected to and/or culminating in a tangible employment action

(including his termination). Additionally, Law does not allege as such on summary judgment. 

Moreover, this Court previously concluded that Law waived his retaliation and training claims, 

and those rulings were not vacated by the Eleventh Circuit. Thus, there is no evidence before the 

Court showing a causal relationship between Law’s termination (or other event) and any alleged 

racial harassment by a supervisor, and as such, no evidence of a tangible employment action on 

summary judgment. See, e.g., Otu v. Papa John’s USA, Inc., 400 F. Supp. 2d 1315, 1328 (N.D. 

Ga. 2005) (discussing a similar situation where a plaintiff failed to show the causal relationship 

on summary judgment).

When there is no evidence that a harassing supervisor took a tangible employment action 

against an employee, courts assess whether the harassment is nevertheless severe or pervasive 

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enough to constitute a hostile work environment. Joens, 243 F.Supp.2d at 933. If yes, as is the 

case here (see supra), the employer is vicariously liable for a supervisor’s harassment unless the 

employer can prove both elements of the Faragher/Ellerth affirmative defense. Id.

First, for “prevention,” there is no uniform test for determining whether an employer's 

policy demonstrates that it exercised reasonable care, and the mere existence of a formal antiharassment policy does not satisfy this first prong. See, e.g. Frederick, 246 F.3d at 1313 (noting 

that the employer failed to establish that its policy contained reasonable complaint procedures); 

Dinkins v. Charoen Pokphand USA, Inc., 133 F. Supp. 2d 1237, 1251 (M.D. Ala. 2001) 

(concluding that the employer failed to establish the affirmative defense that it was diligent in 

preventing and correcting harassment, and that complaining employees had not taken advantage 

of opportunities for redress provided by employer). An employer's policy fulfills its “prevent 

harassment” obligation if the employer promulgates a policy that is “comprehensive, well-known 

to employees, vigorously enforced, and provides alternate avenues of redress[;] and the policy 

must not be administered “in bad faith” or be otherwise “defective or dysfunctional.” Dinkins, 

133 F. Supp. 2d at 1251 (citing Farley v. American Cast Iron Pipe Co., 115 F.3d 1548, 1554 (11th

Cir. 1997) and Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1298 (11th Cir. 2000)). “A 

policy is ‘defective’ if those responsible for its enforcement lack training and knowledge 

sufficient to recognize, prevent and correct workplace discrimination.” Id. Essentially then, an 

employer can establish that it exercised reasonable care to prevent harassment by showing that it 

promulgated and effectively disseminated a clear anti-harassment policy with complaint 

procedures to its employees, see Faragher, 524 U.S. at 807-808 and Ellerth, 524 U.S. at 765, so 

long as the complaint procedures “meet the minimum requirements for the Faragher affirmative 

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defense...[and do] not require...the employee to complain to the offending supervisor or through 

the supervisor’s chain of command and...provide[] multiple avenues of lodging a complaint to 

assessable, designated representatives.” Madray, 208 F.3d at 1299 (determining the policy was 

sufficient “because the procedures did not require that the employee complain to the offending 

supervisor or through the supervisor's chain of command and the procedures provided multiple 

avenues of lodging a complaint to assessable, designated representatives[]”). See also e.g., 

Olson v. Lowe’s Home Ctrs. Inc., 130 Fed. Appx. 380, 389 (11th Cir. 2005) (finding satisfaction 

of the first prong as the policies enabled employees to bypass harassing supervisors and provided 

several different avenues for employees to report harassment); Reyna v. ConAgra Foods, Inc., 

506 F. Supp. 2d 1363, 1375 (M.D. Ga. 2007) (holding that material issues of fact, as to whether 

employer took reasonable care to prevent and properly correct harassment, precluded summary 

judgment for employer, based on existence of procedures for addressing discrimination issues 

not utilized by claimants). This “requires...a clear and known policy against workplace 

harassment...[including] permit[ting] employees to bypass supervisors and retain some vestige 

of anonymity.” Bury v. Sky Chefs, 2011 WL 197383, *6 (S.D. Fla. Jan. 20, 2011) (defining the 

first prong of Faragher/Ellerth). Inherent defects exist when a policy’s complaint procedures do 

not “meet the minimum requirements” for the Faragher affirmative defense: provide employees 

“multiple avenues of lodging a complaint to assessable, designated representatives” outside of 

the supervisory chain of command (do not require an employee complain to the offending 

supervisor or through the supervisor's chain of command). Madray, 208 F.3d at 1299 (emphasis 

added). Moreover, “a policy is [considered] ‘defective’ if those responsible for its enforcement 

lack training and knowledge sufficient to recognize, prevent, and correct workplace 

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discrimination.” Dinkins, 133 F. Supp. 2d at 1251. 

Concerning the second prong of “prevention” -- whether the employer took reasonable 

care to “correct promptly” any harassment -- “the employer's notice of the harassment is of 

paramount importance [because] if the employer had notice of the harassment...then it is liable 

unless it took prompt corrective action.” Madray, 208 F.3d at 1299 (citing Dees v. Johnson 

Controls World Services, 168 F.3d 417, 422 (11th Cir. 1999)). An employer is directly liable for 

co-worker harassment if the employer knew or should have known of the conduct but failed to 

take prompt remedial action. See, e.g., Miller, 277 F.3d at 1278; Breda v. Wolf Camera & 

Video, 222 F.3d 886, 889 (11th Cir. 2000). “Actual notice is established by proof that 

management knew....constructive notice will be found where the harassment was so severe and 

pervasive that management should have known of it.”7 Miller, 277 F.3d at 1278. “This inquiry 

is facilitated by the identification of the ‘appropriate Company representative’ to whom 

employees should register their complaints” in the employer’s policy. Madray, 208 F.3d at 

1299-1300. Once it is determined that the employer had adequate notice, whether the employer 

took timely corrective action depends upon whether it responded in a reasonably prompt manner 

to the employee’s harassment complaint. See, e.g., Frederick, 246 F.3d at 1316. Thus, when the 

employer had notice is key “to determine the alacrity of its response[;]” the employer is liable 

unless it took “prompt corrective action.” Madray, 208 F.3d at 1299; Dees, 168 F.3d at 422. See

also e.g., Coates v, Sundor Brands, Inc., 164 F.3d 1361, 1364 (11th Cir. 1999) (noting that the 

 7

 For constructive notice, courts also consider: 1) the remoteness of the location of the harassment as 

compared to the location of management; 2) whether the harassment occurs intermittently over a long period of 

time; 3) whether the victims were employed on a part-time or full-time basis; and 4) whether there were only a few, 

discrete instances of harassment. See, e.g., Miller, 277 F.3d at 1278; Allen, 121 F.3d at 647.

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appropriate inquiry at this stage is to ask is what measures an employer (in that case via an HR 

Manager) reasonably believed had been taken to address the problem). 

Second, courts assess whether the employee unreasonably failed to take advantage of any 

preventative or corrective opportunities provided by the employer to avoid harm.8 Joens, 243 

F.Supp.2d at 933. “[W]hile proof that an employee failed to fulfill the corresponding obligation 

of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any 

complaint procedure provided by the employer, demonstration of such failure will normally 

suffice to satisfy the employer's burden under the second element of the [affirmative] defense.” 

Madray, 208 F.3d at 1301 (citing Faragher, 524 at 807-808 and Ellerth, 524 U.S. at 765). 

However, “employees of such companies who believe they are victims of harassment need not 

be concerned with whether they pursued their complaints far enough up the company ladder.” 

Breda, 222 F.3d at 890 (explaining that the question of whether an employee followed the 

procedures established in the company's policy in a reasonable manner is an issue of fact to be 

determined by a jury). “In defining the contours of what it means to reasonably use the 

complaint procedures and, thereby, properly report...harassment,” the Eleventh Circuit has 

identified criteria that “must be satisfied[:]” 1) the employee must have complained to the 

appropriate person; and 2) if yes, the employee’s conversations with such person must be 

sufficient to place the employer on notice. Olson, 130 Fed. Appx. at 389-390 (citing Madray, 

208 F.3d at 1300, Breda, 222 F.3d at 889 and Coates, 164 F.3d at 1364). 

 8 Austal references Law’s failure to report each and every single instance of harassment as a failure to 

fulfill this policy reporting procedure. (Doc. 183 at 14). Austal then cites Faragher as follows: “Law’s failure to 

utilize a preventive or corrective opportunity provided by Austal precludes Austal from being held vicariously liable 

of the alleged actions of its employees.” (Id.) However, Faragher does not state as such. Faragher provides: “[i]f 

the plaintiff unreasonably failed to avail herself of the employer's preventive or remedial apparatus, she should not 

recover damages that could have been avoided if she had done so. Faragher, 524 U.S. at 807 (emphasis added).

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Concerning co-workers, an employer is liable for co-worker harassment if the employer 

knew (actual notice) or should have known (constructive notice) of the harassing conduct but 

failed to take prompt remedial action. See, e.g., Miller, 277 F.3d at 1278; Breda, 222 F.3d at 

889. Once notice is established, a plaintiff must show that the employer “failed to take 

immediate and appropriate action.” Watson v. Blue Circle, Inc., 324 F.3d 1252, 1259 (11th Cir. 

2003). See also Frederick, 246 F.3d at 1314; Minix v. Jeld-Wen, Inc., 237 Fed. Appx. 578, 583 

(11th Cir. 2007). The action must be “reasonably likely to prevent the misconduct from 

recurring.” See, e.g., Kilgore v. Thompson & Brock Mgt., Inc., 93 F.3d 752, 754 (11th Cir. 

1996). The employer’s action must be “effective action in order to exempt an employer from 

liability[]” Saville v. Houston Cty. Healthcare Auth., 852 F. Supp. 1512, 1528 (M.D. Ala. 1994), 

and “must be ‘reasonably calculated to end the harassment,’ and the promptness and adequacy of 

the employer’s response must be evaluated on a case-by-case basis. Of special importance is 

whether the...harassment ended after the remedial action was taken[]” Munn v. Mayor and 

Aldermen of City of Savannah, Ga., 906 F. Supp. 1577, 1583 (S.D. Ga. 1995). 

Even though it bears the burden of proof, Austal’s motion minimally addresses the fifth 

element of employer liability and the related Faragher/Ellerth affirmative defense. Austal 

submitted evidence that it characterizes as examples of “responses” taken, in general, to 

racial/harassment incidents during its history. (Doc. 183 at 14-15). Regardless, factual issues 

exist for element five, including whether Austal’s response to complaints was adequate. In sum, 

the Court finds that Law has submitted sufficient evidence to establish that genuine issues of 

material fact exist questioning Austal’s ability to shield itself with Faragher/Ellerth. 

Accordingly, Austal’s motion as to Law’s hostile work environment claim is DENIED.

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IV. Conclusion

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

as to Law’s hostile work environment claim.

9

DONE and ORDERED this the 3rd day of September 2014.

/s/ Kristi K. DuBose

KRISTI K. DuBOSE

UNITED STATES DISTRICT JUDGE

 9 Law seeks an award of punitive damages against Austal. It is ORDERED that Austal’s motion for 

summary judgment regarding Law’s punitive damages claim is DENIED at this time.

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