Johnson v. Austal, U.S.A., L.L.C.

• Decision Date: 01 August 2011
• Docket Number: Civil Action No. 08–00155–KD–N.
• Citation: 805 F.Supp.2d 1299
• Parties: Carlos JOHNSON, et al., Plaintiffs, v. AUSTAL, U.S.A., L.L.C., Defendant.
• Court: U.S. District Court — Southern District of Alabama

805 F.Supp.2d 1299

Carlos JOHNSON, et al., Plaintiffs,

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

Civil Action No. 08–00155–KD–N.

United States District Court,S.D. Alabama,Southern Division.

Aug. 1, 2011.

Alexander Nicholas Gerogiannis, Ann C. Robertson, Rocco Calamusa, Jr., Jacob Andrew Kiser, Wiggins, Childs, Quinn & Pantazis, LLC, Candis A. McGowan, Birmingham, AL, Henry Brewster, Henry Brewster, LLC, Mobile, AL, for Plaintiffs.

Anne Laurie McClurkin, Archibald T. Reeves, IV, Edward S. Sledge, III, Thomas M. O'Hara, McDowell Knight Roedder & Sledge, L.L.C., John Wesley Bell, Mobile, AL, for Defendant.

ORDER

KRISTI K. DuBOSE, District Judge.

This matter is before the Court on Defendant's partial ¹ motion for summary judgment (Docs. 171, 172), Plaintiff's Opposition (Doc. 304), and Defendant's Reply (Doc. 330).

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). Carlos Johnson (“Johnson”) asserts claims for hostile work environment and disparate treatment (discriminatory pay and promotions) based on race, in violation of Title VII and 42 U.S.C. § 1981. (Doc. 37 at 74–79). ³

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. 172 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. Johnson's Employment

Carlos Johnson was hired by Austal as Trades Assistant (“TA”) ⁴ on May 22, 2006, in the Fabrication Department at the rate of $11/hour. (Doc. 172–1) (Dep. Johnson at 41, 43, 48); Doc. 295 at 19 (Exhibit 105–Sealed); Doc. 172–1 at 46; Doc. 172–2 (Decltn. Lindley at 7). During his employment, Johnson received at least seven (7) pay raises, including August 28, 2006 (from $11/hour to $12/hour—“continued improvement”); November 1, 2006 (from $12/hour to $14/hour—“keep up the good work Carlos”); June 25, 2007 (from $14/hour to $15/hour); October 1, 2007 (from $15/hour to $16.50/hour—“Carlos has come along [sic] way since coming over from the Fab dept. He works hard and try's [sic]”); February 4, 2008 (from $16.50/hour to $17.50/hour—“excelent [sic] performance of duties, B-class welder”); June 30, 3008 (from $17.50/hour to $18.03/hour—“cost of living adjustment[ ]”); March 9, 2009 (from $18.03/hour to $20.03/hour).⁵ (Doc. 172–1 at 48–49, 51–54; Doc. 295 at 19 (Exhibit 105–Sealed); Doc. 172–2 (Decltn. Lindley at 7); Doc. 330–6 at 4 (Decltn. Expert Dr. Steward)). As of October 2009, Johnson earned $18.57/hour; Johnson remains employed at Austal and currently works as an Inspector in the Quality Control Department earning $20.25/hour. (Doc. 172–2 (Decltn. Lindley at 7)).

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 “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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2548. “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 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, 113 S.Ct. 1259, 122 L.Ed.2d 657 (1993) (internal citations and quotations omitted).

III. Timeliness of Claims under Title VII

A plaintiff may not sue under Title VII unless he first exhausts administrative remedies by filing a timely charge of discrimination with the appropriate agency. See, e.g., Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir.2001). “In a non-deferral state such as Alabama, the deadline for filing is 180 days after the alleged discriminatory act.” Carter v. University of South Alabama Children's & Women's Hosp., 510 F.Supp.2d 596, 606 (S.D.Ala.2007). See also Tipp v. AmSouth Bank, 76 F.Supp.2d 1315, 1327 (S.D.Ala.1998). “If the victim of an employer's unlawful employment practice does not file a timely complaint, the unlawful practice ceases to have legal significance, and the employer is entitled to treat the unlawful practice as if it were lawful.” City of Hialeah, Fla. v. Rojas, 311 F.3d 1096, 1102 (11th Cir.2002). See also Sheffield v. United Parcel Service, Inc., 403 Fed.Appx. 452, 453–54 (11th Cir.2010) (unpublished); Jordan v. City of Montgomery, 283 Fed.Appx. 766, 767 (11th Cir.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.

Johnson signed his EEOC Charge (for race and “continuing action”) on May 21, 2008 and it was stamped “received” on May 29, 2008. (Doc. 286–8). Calculating from the May 21, 2008 date, Austal contends that only those discrete discriminatory acts occurring within the 180 days prior (between November 24, 2007 and May 29, 2008) are timely.⁶ (Doc. 172 at 7). From this, Austal seeks summary judgment on “[a]ll alleged [discriminatory] acts” occurring between Johnson's hire date of May 22, 2006 and 180 days prior to the EEOC filing (actually December 1, 2007, not November 24, 2007 as Austal asserts). ( Id.) ⁷

Johnson 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. 304 at 14) (citing McKenzie v. Citation Corp., LLC, 2007 WL 1424555 (S.D.Ala.2007)). Johnson 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, 122 S.Ct. 2061, 153 L.Ed.2d 106 (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, 122 S.Ct. 2061. As explained in Smiley v. Alabama Dept. of Transp., Slip Copy, 778 F.Supp.2d 1283, 1294–95 (M.D.Ala.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, 122 S.Ct. 2061.

Johnson'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 Johnson's hostile work environment claim (“all alleged acts”) is DENIED.

As to Austal's untimeliness claim pertaining to “all alleged...