KRISTI K. DuBOSE, District Judge.
This matter is before the Court on Defendant's partial
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.
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).
Carlos Johnson was hired by Austal as Trades Assistant ("TA")
"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
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).
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,
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.
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):
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
As to Austal's untimeliness claim pertaining to "all alleged discriminatory acts" between May 22, 2006-December 1, 2007, the Court first addresses Johnson's disparate treatment claim for failure to promote concerning the position given to Everett Maylin. The EEOC charge includes the details surrounding this failure to promote claim (Doc. 286-8 at 3 (EEOC Charge)), and moreover, this promotion claim dates to a time in May 2008 prior to the filing of the EEOC Charge, and so is timely. Thus, Austal's motion is
Concerning Johnson's failure to promote claim relating to the position given to Benjamin Hoffner, according to Johnson, Hoffner was promoted to Fitout Supervisor on June 1, 2007 and then promoted to Engineering Supervisor on February 18, 2008. (Doc. 304 at 10). Austal claims that "[a]ll alleged acts" occurring between Johnson's May 22, 2006 hire date and 180 days prior to the EEOC filing (December 1, 2007) are barred, which would include Johnson's alleged denials of promotions before December 1, 2007—as these would have been discrete discriminatory acts. See e.g., National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002): "Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify." Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable "unlawful employment practice." Id. (emphasis added). In Morgan, the U.S. Supreme Court drew a distinction between discrete acts of discrimination and hostile work environment claims, noting that "discrete acts such as... failure to promote. ... are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable unlawful employment practice." Morgan, 536 U.S. at 114, 122 S.Ct. 2061. Additionally, the Eleventh Circuit has held that the denial of a promotion is a one time violation, the present consequences of which only are felt at the present time, and not a continuing violation. Id. (citing Roberts v. Gadsden Memorial Hosp., 835 F.2d 793 (11th Cir.1988), modified, 850 F.2d 1549 (11th Cir.1988) and Price v. M & H Valve Co., 177 Fed.Appx. 1, 4-5 (11th Cir.2006) (unpublished)). Accordingly, Austal's motion for summary judgment as to Johnson's Title VII claims for denial of promotions prior to December 1, 2007 (thus including the June 1, 2007 promotion of Hoffner), based on untimeliness, is
As for Johnson's Title VII claim for Hoffner's February 18, 2008 promotion, this February 18, 2008 promotion of Hoffner occurred after December 1, 2007 and so is within the 180 days prior to Johnson's May 29, 2008 filing.
Regarding Johnson's Title VII claims of discriminatory pay (for pay raise and initial hourly rate/hourly wages)—the Court finds as follows. At the outset, based on the record and the facts of this case, Johnson's singular pay raise claim is a discrete act,
Concerning Johnson's initial hourly rate/hourly wage claim (that certain Caucasians were paid a higher starting salary than African Americans), this claim is tied to Johnson's starting salary ($11/hour) and the pay (hourly wages) he received thereafter (as compared to Caucasian employees), and thus is framed by Johnson as a discriminatory compensation decision claim (i.e., paychecks received as a periodic implementation of a previously made discriminatory employment decision).
Austal asserts new arguments in its Reply concerning the timeliness of certain claims (including claims for which Austal did not move for summary judgment). (Doc. 330 at 2-4 and 8-14). 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):
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").
Racial harassment is actionable under Title VII/Section 1981 where the conduct is sufficiently severe or pervasive
Austal contends that: 1) Johnson'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) Johnson 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 Johnson failed to report certain conduct; and 4) Austal took reasonable preventative and corrective/remedial measures to prevent a hostile work environment.
As to whether the conduct was severe and pervasive, Johnson points to the following evidence.
Johnson alleges that Caucasian co-worker James Sullivan grabbed an African American supervisor by the arm saying "don't turn your back on me, boy." (Doc. 285-12 (Dep. Johnson at 125-126)). Sullivan's actions were reported "several times." (Id. (Dep. Johnson at 126)). For instance, African American co-worker Markell complained to Austal that Sullivan had grabbed him and said "hey boy, don't walk away from me." (Id. (Dep. Johnson at 126, 131, 133)). While there were witnesses to that incident, nothing was done to Sullivan: "he would grab you by your arm, hey, boy, don't walk away from me. And people would go to the office on him. But .... wasn't nothing said [by Austal]." (Id. (Dep. Johnson at 126)). Similarly, Sullivan (who became a project manager) and African American co-worker Joe Coleman argued over a job that had not been done, and when Coleman tried to walk away, Sullivan grabbed him by his arm and said "don't walk away when I'm talking to you, boy. We can go to the parking lot." (Id. (Dep. Johnson at 131, 133)).
Johnson saw Caucasian supervisor Tim Clements act like a monkey to an African American co-worker—swinging upside down on the scaffolding and scratching under his arm. (Doc. 172-1 (Dep. Johnson at 120-121); Doc. 285-12 (Dep. Johnson at 133)). Additionally, supervisor Clements also had a "habit of, the black guys, he would come up and kick us. Instead of calling our name, he'll come up and kick us." (Doc. 172-1 (Dep. Johnson at 120)). Supervisor Clements kicked Johnson as well. (Id. (Dep. Johnson at 121)). Johnson went to his supervisor Chris Moore and complained about Clements' actions, stating that he was "very offended by him kicking[ ]" and "I feel like this guy's prejudiced[;]" in response, Moore told him that he would "look into it." (Id.) Johnson did not hear back from Moore. (Id.) Clements was subsequently promoted to stand-in manager even though the Austal handbook provided for zero tolerance; "he should have been terminated for it." (Doc. 285-12 (Dep. Johnson at 122)).
One Caucasian co-worker and supervisor Clements commented on Johnson's tattoos
Johnson alleges that he was told by a co-worker, that Caucasian co-worker Michael Waters told another Caucasian "about how he wished these niggers ... would do something." (Doc. 172-1) (Dep. Johnson at 137, 178). One day, Waters said to Johnson "I don't like black guys. You know, I don't like thugs.... I said, well, like, what's your problem. He told me, for one, y'all's is bigger than ours." (Id. (Dep. Johnson at 139)). Johnson did not complain about Waters' comment because "when you go to a foreman or a manager [to complain], your next two weeks you're going to be in a dark hole ... upside down on your back ... They all knew each other. So ... if you messed around and got ... on the[ir] bad side, you would have a bad job by that next day." (Id. (Dep. Johnson at 139-140)).
Johnson heard a Caucasian employee tell a joke once that had the word "nigger" in it: "little Johnny asked a black kid to go to a Klan meeting. Told him to just have on a hood ... when the black kid got home his parents whopped him. And the ... little Johnny, asked him do he want to go back. He say, no, I want to kill two niggers already ..." (Doc. 172-1) (Dep. Johnson at 178-179). Johnson reported the co-worker's joke to his supervisor Chad Guyett; Guyett "slapped Randy [McCall] on the hand, pretty much. Told him, you know, you can't tell them jokes on the clock. You got to tell them off the clock." (Id. (Dep. Johnson at 179)); Doc. 285-12 (Dep. Johnson at 179-181).
Johnson also alleges that once, after he and another African American employee moved a heavy hatch, Caucasian employee Michael Waters commented "all you need is a little slave power." (Doc. 172-1 (Dep. Johnson at 203)). When Waters made the comment, his supervisor and supervisor Chad Guyett were standing "right there[ ];" Guyett was the supervisor Johnson would have reported the incident to, but Johnson did not report it though because Guyett witnessed the comment. (Id. (Dep. Johnson at 204)).
Johnson was subjected to displays of the Confederate flag on t-shirts and a tattoo, as worn "[n]umerous times" by Caucasian co-workers ("Big Eagle"), Everett Maylin, and "more." (Doc. 172-1 (Dep. Johnson at 191-192)). Johnson finds the Confederate flag racially offensive. (Id. (Dep. Johnson at 192)). Johnson did not complain about the flag imagery because, for example, for Big Eagle, "his supervisor seen him with the shirt on and he wore it over and over and over again after they still had said zero tolerance." (Id.) See also Doc. 283-50. Austal took no action regarding the displays of the Confederate flag in the workplace.
Johnson was also aware that two (2) nooses were found on Austal property; he only witnessed one of them (not the May 1, 2008 noose). (Doc. 172-1 (Dep. Johnson at 99)).
Johnson was also made aware of another noose which had been made and hung by a Caucasian co-worker; the noose was photographed by an employee and HR was notified. (Doc. 285-12 (Dep. Johnson at 109)). Johnson was told about the noose and shown the photograph of the noose, which was hung on the bulkhead of the Hawaiian Superferry. (Id. (Dep. Johnson at 113)). Caucasian supervisor "Waldo" responded to a co-worker's concern about the presence of the noose as follows: "hey, man, that ain't nothin, that's just something to hold tape up on there ..." (Id.)
Johnson alleges further, that a co-worker found a "zip tie" figurine with a noose around its neck and the word "nigger" written across its chest, on a boat at Austal, and showed it to him. (Doc. 172-1 (Dep. Johnson at 117-118); Doc. 285-12 (Dep. Johnson at 122-123)). Johnson and others reported this figurine to Caucasian supervisor Chris Moore, who only asked if they had seen who did it. (Doc. 285-12 (Dep. Johnson at 123-124)).
Johnson was also made aware that an African American co-worker found three (3) other (additional) nooses hanging in the ship at Austal. (Doc. 172-1 (Dep. Johnson at 118)).
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, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Allen v. Tyson Foods, 121 F.3d 642, 647 (11th Cir.1997) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (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 Johnson subjectively perceived this work environment to be racially hostile. Thus, the Court need only determine whether Johnson's perception was objectively reasonable.
When viewing the facts in the light most favorable to Johnson, a reasonable jury could find that the harassing conduct alleged was frequent and severe. According to Johnson, "numerous times" (and Johnson's testimony suggests this was fairly regular) during his employment, Caucasian co-workers referred to African Americans as "boy" (including himself); he encountered racial graffiti in the workplace bathrooms on a daily basis; and images of the Confederate flag permeated the workplace "numerous times" as displayed and/or worn on Caucasian co-workers' shirts. Additionally, a Caucasian supervisor who acted like a monkey in front of an African American co-worker and who had a "habit" of regularly "kicking" African American employees to get their attention (apparently as a habitual form of communication), was promoted rather than disciplined by Austal. See, e.g., Webb v. Worldwide Flight Serv., Inc., 407 F.3d 1192, 1193 and 1194 note 3 (11th Cir.2005) (finding without merit defendant's argument that the evidence was insufficient for jury to find hostile work environment where supervisor
The evidence upon which Johnson relies to demonstrate that the conduct unreasonably interfered with his job performance is not as persuasive. In contrast to interfering with his job performance, Johnson received at least seven (7) raises which noted "continued improvement," "keep up the good work," "Carlos has come along [sic] way ... He works hard and try's [sic]," and "excelent [sic] performance of duties, B-class welder." Johnson also testified that he "[h]ate the negative things that happened ... But I refuse to let that bring my positive attitude down." (Doc. 330-2 (Dep. Johnson at 34)). However, the Court also notes that the record reveals that Johnson's pay was reduced at least two (2) times.
Nevertheless, Eleventh Circuit precedent mandates that courts consider "the totality of the circumstances" such that the absence of one factor (i.e., unreasonable interference) is not dispositive. See, e.g., Miller, 277 F.3d at 1277 (finding that a failure by an employee to show how harassing conduct unreasonably interfered with the employee's work performance did not necessarily constitute a failure to satisfy the objectiveness prong). The U.S. Supreme Court has cautioned further, that harassment need not be shown to be so extreme that it produces tangible effects on job performance to be actionable. Harris, 510 U.S. at 22, 114 S.Ct. 367. See also e.g., Miller, 277 F.3d at 1277. Having established the frequency, severity and the humiliating and demeaning nature of the conduct, Johnson's weak demonstration of how the conduct interfered with his job is not fatal to his claim. Miller, 277 F.3d at 1277; Head v. Pitts Enterprises, Inc., Slip Copy, 2010 WL 2773376, *12 (M.D.Ala. Jul. 14, 2010).
In sum, under the totality of the circumstances and considering the allegations in the light most favorable to Johnson, he has produced sufficient evidence—if believed by a jury—to create an issue of fact as to whether he was subjected to racial harassment that was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment. Thus, the Court turns to element five: employer liability.
This last element of Johnson's proof requires a basis for employer liability. In Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), the U.S. 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, 118 S.Ct. 2275; Ellerth,
Moreover, Austal is directly liable for co-worker harassment if Austal 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 v. Wolf Camera & Video, 222 F.3d 886, 889 (11th Cir.2000). Once notice is established, a plaintiff must show that the employer "failed to take immediate and appropriate corrective action." Watson v. Blue Circle, Inc., 324 F.3d 1252, 1261 (11th Cir.2003). See also Frederick, 246 F.3d at 1314; Minix v. Jeld-Wen, Inc., 237 Fed. Appx. 578 (11th Cir.2007). The prompt remedial action must be "reasonably likely to prevent the misconduct from recurring." See, e.g., Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1305 (11th Cir.2007); Kilgore v. Thompson & Brock Mgt., Inc., 93 F.3d 752, 754 (11th Cir. 1996); Tipp v. AmSouth Bank, 76 F.Supp.2d 1315, 1333 (S.D.Ala.1998). Specifically, the employer's action must be "effective action" 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). See also Saville v. Houston Cty. Healthcare Auth., 852 F.Supp. 1512, 1528 (M.D.Ala.1994).
Throughout Johnson's employment Austal maintained in its Employee Handbook a Non-Discrimination and Anti-Harassment policy which all employees are required to read and sign. (Doc. 172-2 at 3 (Decltn. Lindley); Doc. 285-2 (Dep. Browning at 56-57); Doc. 172-2 at 15-66 (Austal's April 2006-Issue F Hourly Employee Orientation Booklet and Austal's November 2007-Issue A Employee Handbook)).
Austal's April 2006 and November 2007 anti-harassment policies inform employees about the grievance procedure for reporting incidents of discrimination and harassment. (Doc. 172-2 at 36-37, 50-51). The April 2006 policy provides, in relevant part: 1) that employees are "urged to inform" their Supervisor of suspected violations of the policy, and that the Supervisors are then required to report same to the Department Manager and 2) if for any reason 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. (Doc. 172-2 at 37). The Revised Handbook issued in November 2007, further provides that an employee should report incidents of harassment to his Supervisor, but if not comfortable doing so, may talk to the Department Coordinator or Manager and then if still needing
Taking the facts in the light most favorable to Johnson, it is clear that Johnson complied with Austal's reporting policy
Johnson contends that he was intentionally discriminated against with respect to "terms and conditions of his employment" due to his race in violation of Title VII and Section 1981. Austal moves for partial summary judgment on Johnson's disparate treatment claim for discriminatory promotion concerning the step-up supervisor position (given to Everett Maylin).
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, 126 S.Ct. 1195, 163 L.Ed.2d 1053 (2006). See also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) applies. Under this framework, the plaintiff must establish a prima facie case of intentional race discrimination.
To establish a prima facie case of failure to promote, a plaintiff must show that: 1) he is a member of a protected class; 2) who sought and was qualified for positions that the employer was attempting to fill; 3) despite his qualifications he was rejected; and 4) the employer either continued to attempt to fill the positions or in fact filled the positions with persons outside the plaintiff's protected class. See, e.g., Harrington v. Disney Regional Ent., Inc., 276 Fed.Appx. 863, 872 (11th Cir. 2007) (citing Crawford v. Western Electric Co., Inc., 614 F.2d 1300, 1315 (5th Cir. 1980)). A plaintiff claiming that he was discriminatorily denied a promotion usually must show that he actually applied for the position as part of his prima facie case. Taylor v. Runyon, 175 F.3d 861, 866 (11th Cir.1999); Combs v. Plantation Patterns, 106 F.3d 1519, 1539 at n. 11 (11th Cir. 1997). Where an employer has an informal promotion procedure (i.e., job openings are not posted or applications are not required), however, an employee may establish this element by showing that the position was available and that the employer had some reason or duty to consider him for same. Jones v. Firestone Tire and Rubber Co., Inc., 977 F.2d 527, 533 (11th Cir.1992); Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1133-1134 (11th Cir.1984).
Johnson contends that he was denied a promotion to be a step-up supervisor in the Summer of 2008, and that the position was given instead to a lesser qualified Caucasian co-worker named Everett Maylin. Austal contends that Johnson is unable to establish a prima facie case of discrimination because Johnson has failed to provide evidence that "he was qualified and applied for the promotion or that the employee promoted was equally or less qualified." (Doc. 330 at 15).
Concerning Johnson's specific failure to promote claim tied to the step-up supervisor position, Johnson testified that Maylin was hired on February 25, 2008 "as a machinist" but because Austal did not have any machinist openings, they sent Maylin to hydro testing. (Doc. 285-12 (Dep. Johnson at 79)). However, Maylin did "not know testing" and that is why Johnson trained Maylin and showed him how to operate the valves, put the plugs in, etc. (Doc. 172-1 (Dep. Johnson at 98-99)).
Johnson contends that he had been acting as a step-up supervisor for six (6) months and requested (to his supervisors) to have the pay and position on a permanent basis. (Doc. 172-1 (Dep. Johnson at 65-66); Doc. 285-12 (Dep. Johnson at 75)). When Johnson asked his supervisor Joe Johnson about when he would get his pay raise—as he was performing the supervisor duties—he felt that supervisor Johnson was leading him on telling him in response, "well, you got to wait `til we launch the ship and ... we post it, you'll get it." (Doc. 285-12 (Dep. Johnson at 75)). Johnson added that supervisor Joe Johnson told him on "several occasions[ ]" that he would be made permanent step-up supervisor. (Doc. 330-2 (Dep. Johnson at 91)). When that did not happen, Johnson complained to his supervisor Joe Johnson and then "[w]hen I seen nothing happen[ ]" after that, went to Jeff O'Dell in HR. (Doc.
Johnson is a member of a protected class. Moreover, there is evidence that Johnson repeatedly expressed interest in the step-up supervisor promotion and thus the Court finds that there is sufficient evidence that Austal had reason to consider Johnson for the promotion that he was denied. Johnson also had 1½ years of managerial experience, in addition to six (6) months of experience in the job which was the promotion, and Austal has not disputed that Johnson was qualified for the promotion. The step-up supervisor promotion position was filled with an individual outside of Johnson's protected class. Thus, Johnson has made his prima facie case. As such, Austal's motion for summary judgment, as to Johnson's Title VII and Section 1981 claim of failure to promote for the step-up supervisor position, is
Austal only moved for summary judgment on the untimely nature of "all alleged acts" before November 24, 2007 (thus including the Hoffner Title VII failure to promote claim), which has been addressed supra. Austal, however, did not move for summary judgment on the merits of Johnson's failure to promote claims relating to Hoffner's June 1, 2007 or February 18, 2008 promotions. In fact, Austal's motion does not even mention a failure to promote claim as to Hoffner. As such, Johnson's Title VII and Section 1981 failure to promote claims relating to Hoffner are
Austal only moved for summary judgment on the untimely nature of "all alleged acts" before November 24, 2007 (thus including Johnson's pay claims), which has been addressed supra. Austal, however, did not move for summary judgment on the merits of Johnson's disparate pay claims, but rather only addressed this claim in their reply. In fact, Austal's motion does not even mention disparate pay as an issue in this case in its motion for summary judgment. As such, Johnson's Title VII and Section 1981 disparate pay claims are
Accordingly, it is
It is further
Additionally, while Johnson initially alleged disparate impact claims against Austal, said claims have been dismissed from this litigation. (Doc. 366).
29 U.S.C.A. § 626(d)(3) (2011).
