Adams v. Austal, United Statesa., L.L.C.

• Decision Date: 17 June 2014
• Docket Number: Argument Calendar.,No. 12–11507,12–11507
• Citation: 754 F.3d 1240
• Parties: Robert ADAMS, Nelson Bumpers, Frederick A. Carter, Sr., Alvin Cunningham, Sidney Hedgeman, Tesha Hollis, Larry J. Laffiette, Ron Law, Jerome Pettibone, Rahman K. Pratt, Nathaniel L. Reed, Carolyn Slay, Gloria Sullivan, Franklin Thomas, Frederick Williams, Plaintiffs–Appellants, v. AUSTAL, U.S.A., L.L.C., Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

754 F.3d 1240

Robert ADAMS, Nelson Bumpers, Frederick A. Carter, Sr., Alvin Cunningham, Sidney Hedgeman, Tesha Hollis, Larry J. Laffiette, Ron Law, Jerome Pettibone, Rahman K. Pratt, Nathaniel L. Reed, Carolyn Slay, Gloria Sullivan, Franklin Thomas, Frederick Williams, Plaintiffs–Appellants,

v.AUSTAL, U.S.A., L.L.C., Defendant–Appellee.

No. 12–11507

Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

June 17, 2014.

Rocco Calamusa, Jr., Alexander N. Gerogiannis, Kevin Wade Jent, Candis A. McGowan, Ann C. Robertson, Wiggins Childs Quinn & Pantazis, LLC, Birmingham, AL, Henry Brewster, Henry Brewster, LLC, Mobile, AL, for Plaintiffs–Appellants.

Thomas M. O'Hara, Brian P. McCarthy, Anne Laurie McClurkin, Archibald Thomas Reeves, IV, Edward S. Sledge, III, McDowell Knight Roedder & Sledge, LLC, John W. Bell, Austal USA, Mobile, AL, Hannesson I. Murphy, R. Anthony Prather, Barnes & Thornburg, LLP, Indianapolis, IN, for Defendant–Appellee.

Appeals from the United States District Court for the Southern District of Alabama. D.C. Docket No. 1:08–cv–00155–KD–N.

Before PRYOR and COX, Circuit Judges, and ROSENTHAL,^* District Judge.

PRYOR, Circuit Judge:

This appeal involves complaints of a racially hostile work environment at a shipyard in Mobile, Alabama, owned by Austal, U.S.A., L.L.C. The complaints allege harassment that included vulgar racial graffiti in the men's restroom, appearances of nooses, displays of Confederate flags, and utterances of racial slurs. For almost ten years, Austal repeatedly scrubbed the graffiti from the restroom walls until it finally wised up and painted the walls black. For the most part, the graffiti then ceased. Eventually, 24 African-American current and former employees of Austal filed complaints of racial discrimination. The district court granted summary judgments against the claims of 13 of the employees on the ground that their work environments were not objectively hostile. The district court divided the claims of the remaining plaintiffs to be adjudicated in multiple jury trials. This appeal concerns the 13 orders granting summary judgment in favor of Austal and the jury verdicts against two of the plaintiffs who went to trial, all of which involve claims of a hostile work environment.

In this appeal, we must decide whether an employee may rely on evidence of racial harassment of which he is not personally aware to prove that his work environment was objectively hostile. Although we have held that an employee may introduce evidence of harassment which he is not personally aware to prove that his employer is responsible for the harassment or to rebut an affirmative defense, Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1286–87 (11th Cir.2008), our Court has not ruled that this kind of “me too” evidence can prove that a work environment is objectively hostile. We now hold that an employee alleging a hostile work environment cannot complain about conduct of which he was oblivious for the purpose of proving that his work environment was objectively hostile. We nevertheless conclude that seven of the employees presented sufficient evidence that their work environments were objectively hostile, and we vacate the summary judgments against them. We affirm the summary judgments against the remaining six employees and affirm the two jury verdicts.

I. BACKGROUND

Austal is an Australian company that builds custom aluminum ships for commercial and military use. In 1998, Austal established a shipyard in Mobile, Alabama. Austal began operations with fewer than 100 employees, but it currently employs more than 2,000 workers.

The record contains substantial evidence of serious racial misconduct at the shipyard owned by Austal. Austal disputes much of this evidence, but we view the evidence in the light most favorable to the plaintiff. Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir.2012). The employees allege, for example, that vulgar racial graffiti of the following kind frequently appeared in the men's restrooms on its premises: “see, niggers travel in packs just like monkeys”; “[t]he only people wearing union shirts are the lazy-ass niggers”; “[h]ow do you keep ten niggers from raping your wife, give them a basketball”; “white is right”; “why don't niggers use aspirin? Because they don't want to pick the cotton off the top”; “I'm not a full-fledged white man until I split the raw, black oak”; “KKK is getting bigger”; “[h]ow do you starve a nigger to death? Hide his food stamp card in his work boots.” Austal cleaned the bathroom every few weeks and eventually painted the walls black. Several of the employees also saw or heard about a noose found in the breakroom at Austal in May 2008. Some employees saw multiple nooses. In total, employees discovered eight nooses at Austal while the plaintiffs worked there. Several of the employees' white counterparts also offended them by wearing or displaying Confederate flag paraphernalia. And several employees allege that white supervisors and coworkers called them or another African–American employee “boy,” “monkey,” and “Jeffrey.”

A key dispute involves the frequency of exposure to the racial misconduct that each employee experienced. When it moved for summary judgment against all the claims of a racially hostile work environment, Austal contested whether the employees had proffered substantial evidence that a reasonable person would find the racial harassment of each employee sufficiently severe or pervasive. The district court granted 13 of the motions for summary judgment in favor of Austal.

For 13 of the employees—Robert Adams, Nelson Bumpers, Alvin Cunningham, Tesha Hollis, Larry Laffiette, Ron Law, Jerome Pettibone, Rahman Pratt, Nathaniel Reed, Carolyn Slay, Gloria Sullivan, Franklin Thomas, and Frederick Williams—the district court ruled that “a reasonable jury could not find that the harassing conduct alleged was frequent and severe.” The district court explained that not all of the employees shared the same supervisor, worked in the same department, or were employed during the same time periods. As a result, the district court evaluated each claim of a hostile work environment based on “the specificity and quantity of evidence presented by each plaintiff.” And the district court considered whether each employee had been aware of the harassment; the district court ruled that each employee could not use evidence of racial misconduct to prove that his hostile work environment was objectively hostile if the employee had been unaware of that misconduct.

Before the trial of Frederick Carter's and Sidney Hedgeman's claims of a racially hostile work environment, Austal filed a motion in limine to exclude “me too” testimony about other employees. The district court limited Carter's and Hedgeman's evidence to incidents of which at least one of them was aware. Carter and Hedgeman moved to alter or amend that ruling, but the district court denied the motion and explained that its order was only preliminary. During trial, the district court revisited its preliminary ruling and allowed Carter and Hedgeman to present evidence of racial harassment by any of their supervisors against other employees.

The district court used the 2005 Eleventh Circuit Pattern Jury Instructions to explain as follows the difference between liability premised on a supervisor's actions and liability premised on a coworker's actions:

[W]hen a hostile or abusive work environment is created by the conduct of a supervisor with immediate or successively higher authority over the Plaintiff, the Defendant employer is responsible under the law for such behavior and the resulting work environment.

When a hostile or abusive work environment is created and carried on by the non-supervisory fellow co-workers of the Plaintiff, the Defendant, as the Plaintiff's employer, will be responsible or liable for permitting such behavior only if the Plaintiff proves by a preponderance of the evidence that the Plaintiff's supervisor or successively higher authority knew, that is, had actual knowledge, or should have known, that is, had constructive knowledge, of the hostile or abusive work environment and permitted it to continue by failing to take remedial action.

To find that a supervisor had constructive knowledge of a hostile or abusive work environment, that is, that the supervisor should have known of such environment, the Plaintiff must prove that the hostile or abusive environment was so pervasive and so open and obvious that any reasonable person in the supervisor's position would have known the harassment was occurring. Even though you may have already determined that the Plaintiff was, in fact, exposed to a hostile or abusive work environment, that alone is not determinative of the issue of the supervisor's knowledge; rather, you must find that discriminatory harassment to which the Plaintiff was exposed was so pervasive and unconcealed that knowledge on the part of the supervisor may be inferred.

The district court also instructed the jury as follows that an employee must be aware of an incident of racial misconduct to rely upon it as proof of a hostile work environment:

As to the claim of hostile work environment, each Plaintiff must show that he was aware of the incidents, that is, the racial comments or the conduct, at the time he was employed at Austal. If a Plaintiff cannot show that he was aware of the incidents when he was employed, he cannot rely on that evidence to support his case, and it cannot be considered by you as part of that Plaintiff's claim against Austal.

And the district court instructed the jury as follows that each claim must be decided separately:

When more than one claim is involved and when more than one defense is asserted, you should consider each claim and each defense separately, but in deciding whether any fact has been proved by a preponderance of the evidence, you may consider the testimony of all the...