[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14695 JULY 31, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 04-00307-CV-BH-B
CLAUDELL L. MACK,
THEODORE CARTHEN,
JON KEITH GEORGE,
EARL J. MALLORY,
CLARENCE MCDONALD, III,
DAMON L. WAYNE,
Plaintiffs-Appellants,
versus
ST MOBILE AEROSPACE ENGINEERING, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(July 31, 2006)
Before HULL and WILSON, Circuit Judges, and GOLDBERG,* Judge.
WILSON, Circuit Judge:
Claudell Mack, Theodore Carthen, Jon George, Earl Mallory, Clarence
McDonald, and Damon Wayne appeal from the district court’s entry of summary
judgment in favor of their employer ST Mobile Aerospace Engineering, Inc.
(“MAE”) on their claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, et seq., and the Civil Rights Act of 1991, 42 U.S.C. § 1981. They allege
that there were issues of material fact as to whether MAE subjected them to a
racially hostile work environment and disparate treatment in terms of pay,
promotion, demotion, discipline, and other terms and conditions of employment.
They also argue that the court abused its discretion in striking certain portions of
their opposition to summary judgment as inadmissible. We agree, except as to the
claims of disparate treatment.
I. BACKGROUND
MAE operates a commercial aircraft maintenance and repair facility in
Mobile, Alabama. Its facilities include aircraft runways and ramps, eight aircraft
hangars, workshops, storerooms, and administrative offices. MAE has
___________________________________
*Honorable Richard W. Goldberg, Judge, United States Court of International Trade, sitting by
designation.
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approximately 1,000 employees and 400 contract workers. Most of these
employees and contract workers are aircraft mechanics and are classified in
progressively higher skill levels: Apprentice, Mechanic I, Mechanic II, and Senior
Mechanic. MAE has Lead Mechanics who direct the daily work of their crews,
relay instructions from management, evaluate mechanics’ job performance, and at
times, recommend employment decisions. MAE also has Acting Leads, who are
appointed temporarily for a particular project, and Relief Leads, who substitute in
the Lead Mechanic’s absence.
MAE’s Policy and Procedure Manual (“PPM”) regulates its operations,
including compensation, standards of conduct, discipline, performance evaluations,
and skill-level progressions. Under the PPM, a new mechanic receives a skill-level
designation based on his or her performance during his first 90 days of work.
Mechanics are paid within the pay range for their position based on experience,
skill level, and job performance. They receive periodic performance reviews,
based on a scoring system from 1 to 7. Mechanics can earn non-competitive, skill-
level promotions, i.e., a progression from Mechanic I to Mechanic II, as well as
competitive promotions to “Lead” or “Project Manager” based on their application
for the position and performance.
MAE maintains a Equal Employment Opportunity/Harassment Policy that
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prohibits discrimination and harassment, particularly any managers’ or
supervisors’ harassment of employees under his or her supervision. During most
times relevant to the plaintiffs’ claims, the Policy’s complaint procedure required
that employees report any incident of harassment or discrimination directly to the
Manager of Administration George Bell or the Manager of Human Resources Dick
Wellington, both white males. MAE encourages employees also to report any
violation to his or her manager or supervisor, who has a responsibility to prevent
harassment, to stop it if it occurs, and to report any violations directly to Manager
Bell. However, “[i]t is essential” under the Policy that an employee notify Bell or
Wellington of any violation: “Reporting [] to your manager or supervisor is not
sufficient.”
Over the years, MAE disseminated and explained the Policy to all
employees and trained directors, managers, supervisors, and leads on their
obligations under the Policy. MAE established an EEO Council, which did not
replace the complaint procedure under the Policy but provided an additional point
of contact for employees with concerns about discrimination or harassment. The
evidence revealed that, throughout his 14 years as Manager of Administration, Bell
received 10 “official” complaints of race discrimination under the Policy, two of
which he failed to investigate, according to the plaintiffs.
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The six plaintiffs’ claims in this lawsuit arise from their work as aircraft
mechanics at MAE. Other than Plaintiff Wayne, each of the plaintiffs continues to
work at MAE. On May 11, 2004, the plaintiffs, all black males, collectively filed a
complaint against the company, claiming they were subjected to a racially hostile
work environment “characterized by the pervasive use of racial slurs and offensive
symbols” over a period of several years. Each plaintiff also claimed he was
subjected to disparate treatment in the terms and conditions of his employment.
The district court granted summary judgment on each of the claims.
II. DISCUSSION
A. Hostile Work Environment Claim
First, we consider whether genuine issues of material fact remain as to
whether the plaintiffs were subjected to a racially hostile work environment. We
review the district court’s entry of summary judgment de novo, “applying the same
legal standards as the district court did and viewing all of the facts in the light most
favorable to the non-moving party.” Cooper v. Southern Co., 390 F.3d 695, 723
(11th Cir. 2004). “Summary judgment is appropriate when ‘the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.’” Id. (quoting
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Fed. R. Civ. P. 56(c)).
A hostile work environment claim is established upon proof that “the
workplace is permeated with discriminatory intimidation, ridicule, and insult, that
is sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.” Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370, 126 L. Ed. 2d 295 (1993) (quotations
and citations omitted). The plaintiff must show:
(1) that he belongs to a protected group; (2) that he has been subject to
unwelcome harassment; (3) that the harassment must have been based
on a protected characteristic of the [plaintiff]; (4) that the harassment
was sufficiently severe or pervasive to alter the terms or conditions of
employment and create a discriminatorily abusive working
environment; and (5) that the employer is responsible for such
environment under either a theory of vicarious or direct liability.
Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002) (citing
Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999) (en banc)). Here,
the fourth and fifth elements are at issue.
1. Whether the Harassment was Sufficiently Severe or
Pervasive
The fourth element has both subjective and objective components.
Mendoza, 195 F.3d at 1246. “The employee must ‘subjectively perceive’ the
harassment as sufficiently severe and pervasive to alter the terms or conditions of
employment, and this subjective perception must be objectively reasonable. The
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environment must be one that ‘a reasonable person would find hostile or abusive’
and that the victim subjectively perceives . . . to be abusive.’” Id. (quoting Harris,
510 U.S. at 21, 114 S. Ct. at 370).
“[T]he objective severity of harassment should be judged from the
perspective of a reasonable person in the plaintiff’s position, considering ‘all the
circumstances.’” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118
S. Ct. 998, 1003, 140 L. Ed. 2d 201 (1998) (quoting Harris, 510 U.S. at 23, 114 S.
Ct. at 371). The objective component is “fact intensive,” and courts consider four
factors when determining whether harassment objectively altered the employee’s
terms and conditions of employment: “(1) the frequency of the 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 the employee’s job performance.” Mendoza, 195
F.3d at 1246. Courts consider the alleged conduct “in context, not as isolated acts,
and determine under the totality of the circumstances whether the harassing
conduct is sufficiently severe or pervasive . . . .” Id. We recognize that MAE
disputes the plaintiffs’ version of many events, but at this summary judgment
stage, we now outline the facts in the light most favorable to the plaintiffs’ version
of what has happened and continues to happen in MAE’s workplace.
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a. Nooses
There are extensive facts to support the plaintiffs’ argument that they were
subjected to severe and pervasive harassing conduct. First, the plaintiffs
collectively alleged that they personally witnessed no less than seven nooses on
MAE premises over a two-year period from 2002 to 2003. The evidence showed
that, in February 2002, MAE discovered a rope noose suspended from a work
stand in Hangar 8. Manager Bell concluded that the noose was not a typical
“hangman’s noose,” but rather was a rope used to suspend air hoses to facilitate
work. Bell warned management in the area that even work-related objects could
appear to be offensive.
One month later, on March 1, 2002, MAE discovered an actual “hangman’s
noose.” MAE identified two white employees who were responsible for the noose
and discharged them. The company also sent all employees a letter to confirm that
the perpetrators had been disciplined and to announce that it had created its EEO
Council as another point of contact for employees with concerns. Around that
same time, in February or March 2002, Plaintiff Carthen found an additional noose
made of yellow rope on the tail stand of a DC-10 in another hangar. He removed
the noose, but did not report it to anyone.
Plaintiff Wayne witnessed yet another noose hanging from a work station in
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Hangar 8 in November 2002. As he approached the noose, Wayne heard Lead
Quinn Holbrook, a white male, say “that’s for them . . . the niggers.” Wayne
reported the comment to Supervisor David Nemecek, a white male, who failed to
report the comment to Managers Bell or Wellington, as the Policy required. When
Wellington finally learned of the incident in the process of this litigation in 2003,
he counseled Holbrook about the seriousness of the allegation and reminded him of
his obligations under MAE’s Policy.
The next year, in May 2003, Plaintiff McDonald discovered two small
nooses made from safety wire, although he did not report the nooses to
management. Finally, Plaintiff Wayne witnessed a small black figurine with a
noose around its neck on a toolbox in Hangar 3 or Hangar 5 in September 2003.
He immediately reported the noose to Manager Bell. At that time, Wayne also
reported to Bell that, in the same hangar with the noose, there were many toolboxes
with rebel flags on them in violation of company policy. Bell dismissed him,
commented on his impending retirement, and took no action.
b. Racial Graffiti
The plaintiffs also alleged that there was a constant presence of racial graffiti
on MAE premises. For example, Plaintiff Wayne repeatedly witnessed racial
graffiti on restroom walls, toolboxes, tables, and lockers, including swastikas,
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“KKK,” “black power,” and “it’s black history month, we ain’t going to go to the
[Mardi Gras] . . . ball” on a restroom wall with the word “black” scratched out and
the word “mooley” substituted. Wayne witnessed the words “wish damn janitors
would clean this place up, damn monkeys” written in the restroom outside
Manager Wellington’s office in approximately September 2004. Wayne reported
offensive graffiti to Manager Bell in March 2003, who directed MAE personnel to
remove it.
Plaintiff McDonald also witnessed offensive graffiti, including racial slurs
and jokes and “KKK” written in the men’s restrooms and on a parts rack. He saw
the word “nigger” written on restroom walls, picnic tables, and parts tables. When
he witnessed this graffiti, he reported it to his leads but not to Managers Bell or
Wellington. Plaintiff George witnessed similar racial graffiti on restroom walls in
various hangars, as recently as August 2004. Once, when he reported the graffiti to
his lead, the graffiti was removed.
Plaintiffs Carthen, Mack, and Mallory also witnessed racial graffiti, although
they did not report it. Carthen saw racist symbols on bathroom walls, headbands,
and t-shirts. He observed a large “KKK” symbol spray-painted in the restroom
several times, and it remained there for approximately one month before it was
removed. Mack saw the letters “KKK,” swastikas, and other racial graffiti on
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restroom walls and on a parts rack. Mallory witnessed the words “nigger go
home” written on a restroom wall, the letters “KKK,” and other racial graffiti, such
as “stick people” with nooses around their necks.
MAE admitted receiving reports of graffiti dating back to 1996. Throughout
the years, MAE attempted to prevent graffiti by remodeling the restrooms to make
it more difficult for anyone to write on the walls, by routinely inspecting the
restrooms, and by sending memoranda to employees and posting signs warning
perpetrators of discipline.
c. Racially Derogatory Comments
The plaintiffs also allege that both supervisors and co-workers directed
racially derogatory comments toward them or used such offensive words in their
presence. For instance, in June 2003, when Plaintiff Mack learned that co-worker
Joshua Frye, a white male, had been promoted from Apprentice to Mechanic after
only six months, he asked Lead Holbrook why Frye and two other white
Apprentices had been promoted so quickly, while it took Mack 18 months to be
promoted to the same position. Holbrook responded, “I’ll tell you the fucking
problem, Mack, you’re the wrong fucking color.” Mack reported this comment to
Manager Bell who reviewed the EEO Policy with Holbrook and warned that the
statement was unacceptable in the workplace. The next day, co-workers
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commented that Mack was “getting all the good jobs now” and that “He’s the
token guy on our crew.” Mack did not report these additional comments.
According to Plaintiff Wayne, white Lead Robert Craft called him “boy” a
number of times and Lead Holbrook referred to him as “boy” between 10 and 20
times. In August 2001, Wayne complained to Supervisor Gerald McAdams, a
white male, but no action was taken. During a meeting in which Project Manager
Sam Mendenhall, a white male, was present, Craft said to Wayne, “Boy, I’ll talk to
you any kind of way I want to talk to you.” Again, no action was taken. In 2002,
Wayne complained to Manager Charles Gennaro, a white male, that Supervisor
McAdams asked Wayne, “How’s my favorite token?” On another occasion,
Wayne reported that he heard Acting Supervisor John Shaw, a white male, call a
contract worker a “lazy nigger.” MAE permanently demoted Shaw and suspended
him for five days without pay. Later, when Wayne arrived for an interview with
MAE’s investigator, who was investigating the plaintiffs’ EEOC charges, he
overheard Manager Bell say, “I’ll be glad when we can get rid of all of them,”
allegedly referring to the plaintiffs. Wayne reported this comment to the
investigator several times.
Plaintiff Carthen alleged that racial slurs, such as “your black ass,” were so
prevalent at MAE that “if you’re walking the hangar floor[,] you cannot miss
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[them].” Carthen testified that a white co-worker said to him, “hey, what’s up my
nigger?” Carthen asked the co-worker not to use that word, but he did not report
the incident. Plaintiff George heard a white co-employee tell a joke that included
the word “nigger.” Lead Mechanic Bill Barnes, a white male, overheard the joke
and reprimanded the employee, but no one reported the incident to Managers Bell
or Wellington.
In November 2003, Plaintiffs George and McDonald met with Manager
Wellington to express their concern about an incident in which co-worker Lynette
Beasley referred to co-worker Millie Williams as a “nigger.” Wellington told
George that the incident was “just a case of slip of the tongue.” Beasley was
suspended for two weeks without pay. In May 2003, Plaintiff Mallory reported to
Manager Bell that a white co-worker made a series of racial remarks to him,
including: “Have you ever been to a party where everybody has on white sheets
and hoods but you;” “I want to take you to a party this weekend where everybody
is going to have a white sheet and hood on but you;” and “we’ll bring some black
pussy there. . . . yea, that’s what I want to get me some black pussy.” MAE
counseled the co-worker on the EEO Policy and suspended him for one week
without pay.
d. Confederate Flags
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Finally, the plaintiffs allege that displays of the Confederate or rebel flag,
particularly on t-shirts, hats, toolboxes, bumper stickers, and tattoos, permeated the
MAE workplace. They alleged that these symbols were present as recently as the
time of their depositions, even after MAE had issued a memorandum regarding
offensive racial symbols. Among other allegations, the plaintiffs alleged that they
witnessed Confederate flag bumper stickers on vehicles parked in MAE’s lot,
including one on Manager Bob Holloway’s vehicle in January 2005, a rebel flag
tattoo on the left arm of Supervisor Lloyd Hodges, and a Confederate flag decal
displayed on a Relief Lead’s toolbox. Plaintiff Carthen witnessed toolboxes with
rebel flags “every day.”
MAE admitted that it received complaints about the Confederate flag over
the last two years. Wellington admitted witnessing rebel flags on toolboxes as
recently as two weeks before his deposition. The company prohibited Confederate
flag decals and license plates on all vehicles parking within the security fence on
company premises, required that any Confederate flags be removed from any new
toolboxes, and published a memorandum to employees regarding offensive racial
symbols.
On April 1, 2003, Plaintiff McDonald placed a complaint titled “Racism” in
the suggestion box near Manager Bell’s office. He complained that minority
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employees found it difficult to work productively in MAE’s environment.
McDonald later visited Bell to discuss the compliant, but Bell said he was too busy
and promised to meet later. Bell never did so. Later that year, in October 2003,
McDonald made a second written complaint about racism. This time, Bell
investigated and found no EEO violation but failed to inform McDonald of the
outcome of his investigation.
The district court ruled that “the plaintiffs . . . failed to produce sufficient
evidence to show that the racial ‘slurs’ and ‘symbols’ were sufficiently ‘severe or
pervasive’ to alter the terms and conditions of any plaintiffs’ employment and
create an ‘abusive working environment.’” It ruled that the alleged racial slurs and
symbols were merely offensive utterances and were not physically threatening.
The court found that the plaintiffs relied “in whole or in part on second-hand
reports of racially-motivated incidents towards other employees.” It ruled that the
impact of such “second-hand harassment is obviously not as great as the impact of
harassment directed at the plaintiff[s].”
e. Severe and Pervasive Harassment under the Totality of the
Circumstances
We find that, based on a totality of the circumstances, the plaintiffs produced
sufficient evidence to create an issue of fact as to whether the plaintiffs were
subjected to a racially hostile work environment. See Allen v. Tyson Foods, Inc.,
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121 F.3d 642, 645 (11th Cir. 1997). First, there is no doubt that the plaintiffs
subjectively perceived the environment at MAE as hostile, and MAE did not argue
this point to the contrary. Turning to the four objective factors, the harassing
conduct at MAE was frequent. The plaintiffs testified that racial graffiti and
Confederate flags permeated the MAE premises for many years. Although MAE
attempted to prevent the graffiti and displays of the Confederate flag, the plaintiffs
frequently continued to discover the offensive symbols on restroom walls,
toolboxes, baseball caps, and bumper stickers. The conduct was also severe,
physically threatening, and humiliating, as evidenced by the fact that the plaintiffs
discovered no less than seven nooses at MAE during a two year period from 2002
to 2003. There was further evidence showing that both employees and
management directed racially derogatory words and jokes, such as “boy,” “nigger,”
and the statement that “you’re the wrong fucking color,” toward the plaintiffs and
others. Finally, there was evidence that the harassing conduct prevented the
plaintiffs from effectively performing their jobs. On at least one occasion, Plaintiff
McDonald filed a written complaint that minority employees found it difficult to
work productively in MAE’s racial environment.
This case differs from cases in which we have determined that the
harassment was not severe and pervasive because there were fewer instances of
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less objectionable conduct over longer periods of time. See e.g., Mendoza, 195
F.3d at 1247 (ruling that a supervisor’s conduct in making one alleged sexual
comment toward the plaintiff, once rubbing up against the plaintiff, making a
sniffing sound three times in the plaintiff’s presence, and constantly following and
staring at the plaintiff was insufficient to affect the plaintiff’s terms and conditions
of employment); Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 585-86 (11th Cir.
2000) (ruling that a co-worker’s conduct in complimenting the plaintiff’s
appearance, frequently calling the plaintiff’s home, and touching the plaintiff’s
knee and hem, among other conduct, was not physically threatening, humiliating,
or severe). The facts in this case involve much more frequent and severe hostile
conduct than Mendoza and Gupta, and the evidence, in the light most favorable to
the plaintiffs, creates an issue of fact for the jury. See Dees v. Johnson Controls
World Servs., Inc., 168 F.3d 417, 418 (11th Cir. 1999); Allen, 121 F.3d at 647.
There is “not simply some magic number of racial or ethnic insults” that preclude
summary judgment, but rather “it is repeated incidents of . . . harassment that
continue despite the employee’s objections [that] are indicative of a hostile work
environment.” Miller, 277 F.3d at 1276 (citation and quotation omitted).
The district court evidently viewed the plaintiffs’ allegations in isolation,
discounting each, to conclude that the conduct was not sufficiently severe or
17
pervasive. Our well-established precedent requires a court to evaluate the evidence
“in context, [and] not as isolated acts, and . . . under the totality of the
circumstances.” Mendoza, 195 F.3d at 1246. We disagree with the district court’s
characterization of the plaintiffs’ case as one based largely on comments directed
at third parties, or incidents that the plaintiffs only learned about from third parties.
“The prima facie showing in a hostile work environment case is likely to consist of
evidence of many or very few acts or statements . . . which, taken together,
constitute harassment. . . . [T]he jury does not necessarily examine each alleged
incident of harassment in a vacuum.” Vance v. Southern Bell Tel. & Tel. Co., 863
F.2d 1503, 1510-11 (11th Cir. 1989), overruled on other grounds, Harris, 510 U.S.
at 22, 114 S. Ct. at 371 (emphasis added) (ruling that the evidence, viewed as a
whole, established racial harassment, when a noose was twice hung at the
plaintiff’s work station). Viewing the evidence in its entirety, in the light most
favorable to the plaintiffs, we rule that there is a genuine issue of material fact as to
whether MAE was “permeated with discriminatory intimidation, ridicule, and
insult, that [was] sufficiently severe or pervasive to alter the conditions of . . .
employment and create an abusive working environment.” Harris, 510 U.S. at 21,
114 S. Ct. at 370 (quotations and citations omitted).
2. Whether MAE Was Liable for the Conduct
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Whether MAE is liable for this harassing conduct depends on whether it was
committed by supervisors or by co-workers. An employer is strictly liable for
harassment committed by supervisors that “culminates in a tangible employment
action, such as discharge, demotion, or undesirable reassignment.” Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 2270, 141 L. Ed. 2d 633
(1998). However, where no tangible employment action is taken, the employer
may raise as an affirmative defense to liability “(a) that the employer exercised
reasonable care to prevent and correct promptly any . . . harassing behavior, and (b)
that the plaintiff employee unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the employer . . . .” Faragher v. City of
Boca Raton, 524 U.S. 775, 807, 118 S. Ct. 2275, 2293, 141 L. Ed. 2d 662 (1998).
With regard to the first element of the Faragher affirmative defense, an employer’s
anti-harassment policy fulfills its obligation unless the policy was administered “in
bad faith” or the policy was otherwise “defective or dysfunctional.” Madray v.
Publix Supermarkets., Inc., 208 F.3d 1290, 1299 (11th Cir. 2000) (quotations and
citations omitted). Furthermore, “while proof that an employee failed to fulfill
[his] 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
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burden under the second element of the defense.” Faragher, 524 U.S. at 807-08,
118 S. Ct. at 2293.
An employer is directly liable for co-worker harassment if it “knew [actual
notice] or should have known [constructive notice] of the harassing conduct but
failed to take prompt remedial action.” Miller, 277 F.3d at 1278. “Actual notice is
established by proof that management knew of the harassment, whereas
constructive notice can be shown where the harassment was so severe and
pervasive that management should have known of it.” Id. We consider the
following factors to be relevant in determining whether harassment was so
pervasive as to provide constructive notice: “the remoteness of the location of the
harassment as compared to the location of management; whether the harassment
occurs intermittently over a long period of time; whether the victims were
employed on a part-time or full-time basis; and whether there were only a few,
discrete instances of harassment.” Allen, 121 F.3d at 647.
Here, the court ruled that MAE satisfied its obligation under the Faragher
defense to exercise reasonable care by implementing and disseminating an anti-
harassment policy. With regard to co-worker harassment, the court ruled that
MAE did not have actual notice of the alleged harassment because many of the
incidents were never reported to the company. Moreover, MAE promptly
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investigated the few incidents that the plaintiffs reported. The court further
concluded that reports to lower-level supervisors, managers, or leads were
insufficient to put MAE on constructive notice. However, the district court once
again failed to examine all of the evidence in the record and erred by considering
incidents and pieces of the evidence in isolation.
There is no “uniform test” for determining whether an employer’s anti-
harassment policy demonstrates that the employer exercised reasonable care.
Madray, 208 F.3d at 1298. Rather, “[t]he employer’s size, location, geographic
scope, organizational structure, and industry segment are just some of the
characteristics that impact the analysis of whether the complaint procedures of an
employer’s anti-harassment policy adequately fulfill Title VII’s deterrent purpose.”
Id. Here, the plaintiffs raised a genuine issue of material fact as to MAE’s liability.
There was evidence that MAE’s EEO Policy did not adequately fulfill Title VII’s
deterrent purpose because it did not provide employees “alternative avenues for
lodging a complaint other than a harassing supervisor.” Id. Under the complaint
procedure, Managers Bell and Wellington were the only designated company
representatives who could properly receive complaints, yet the evidence arguably
revealed both managers’ insensitivity to harassment. Manager Bell was the alleged
offender on at least one occasion when he commented that “[he’ll] be glad when
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we get rid of [the plaintiffs],” an incident which the district court failed to address.
Manager Wellington allegedly characterized an incident in which one employee
called another a “nigger,” as a mere “slip of the tongue.”
Furthermore, viewed in the light most favorable to the plaintiffs, there was
considerable evidence that the complaint procedure was “defective” and
“dysfunctional.” Id. at 1299 (quotations and citations omitted). On two occasions,
Manager Bell failed to respond to the plaintiffs’ official complaints: when Plaintiff
McDonald filed a written complaint titled “Racism” with Bell, and when Plaintiff
Wayne reported to Bell that he discovered a small black figurine with a noose
around its neck in Hangar 3. On another occasion, Bell investigated McDonald’s
complaint, but failed to inform McDonald of the outcome of the investigation. The
record also revealed that, on at least five occasions, supervisors, managers, and
leads failed to fulfill their obligation under the Policy to report complaints they
received to Manager Bell, thus raising factual issues as to the Policy’s
ineffectiveness. For example, Lead Barnes did not report the racial joke he
overheard; Supervisor Nemecek never reported Lead Holbrook’s statement that a
noose was “for them . . . the niggers;” Supervisor McAdams did not report the
incident in which Leads Craft and Holbrook called Plaintiff Wayne “boy;”
Manager Mendenhall did not report another incident in which Holbrook called
22
Wayne “boy;” nor did Manager Gennaro report the incident in which McAdams
asked Wayne “How’s my favorite token?” Therefore, we conclude that the
plaintiffs raised a genuine issue as to whether MAE failed to exercise reasonable
care to prevent and promptly correct harassment because there were inherent
defects in the company’s complaint procedures.
Moreover, there is an issue of fact as to whether MAE had actual knowledge
of co-worker harassment and failed to take prompt remedial action. MAE admitted
actual knowledge of ongoing racial graffiti and displays of the Confederate flag.
The record reflects that MAE took remedial action by inspecting for graffiti and
prohibiting the Confederate flag; but the company’s action was largely ineffective
because even supervisors continued to display the flag after it was prohibited. In
fact, Wellington testified that he took no action against Supervisor Hodges for
openly displaying his rebel flag tattoo, despite the fact that his tattoo arguably
violated the company’s dress code, which prohibited “[v]isible tattoos that . . .
advocate sexual, racial, ethnic or religious discrimination.” A company’s “policy
must be found ineffective when company practice indicates a tolerance towards
harassment or discrimination.” Miller, 277 F.3d at 1280.
The plaintiffs also established an issue of fact as to whether the racial
harassment was so severe and pervasive that MAE should have known of it. There
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was sufficient evidence that incidents of racial harassment, in the form of nooses,
graffiti, racial slurs and jokes, and displays of the Confederate flag, permeated the
open workplace at MAE. Under the facts in this case, the plaintiffs’ failure to
report every incident of harassment does not insulate MAE from liability. Cf.
Farley v. Am. Cast Iron Pipe Co., 115 F.3d 1548, 1554-55 (11th Cir. 1997) (ruling
that an employee’s failure to utilize an employer’s effective and comprehensive
anti-harassment policy that was “aggressively and thoroughly disseminated” will
prevent constructive knowledge of such harassment from adhering to the
employer). Under the totality of the circumstances, we cannot conclude that
MAE’s anti-harassment Policy would prevent a reasonable jury as a matter of law
from charging the company with constructive notice of the harassment. See Miller,
277 F.3d at 1280.
In conclusion, at the summary judgment stage, the court has the duty to
examine all of the offensive conduct “collectively,” Gupta, 212 F.3d at 586, and
“cumulatively,” Mendoza, 195 F.3d at 1242, and to construe all evidence and
inferences in the light most favorable to the nonmoving party. Allen, 121 F.3d at
646. Here, evidence was presented that demonstrated a genuine issue of fact
concerning whether the plaintiffs were subjected to a racially hostile work
environment. Whether there was in fact a racially hostile work environment at
24
MAE is for the trier of fact to decide. See id. at 648. In addition, the record
presents issues of fact as to: (1) whether “[MAE] exercised reasonable care to
prevent and correct promptly any . . . harassing behavior”; (2) whether MAE’s
anti-harassment policy was sufficiently and effectively enforced; and (3) whether
the plaintiffs “unreasonably failed to take advantage of any preventive or
corrective opportunities provided by [MAE].” Faragher, 524 U.S. at 807, 118 S.
Ct. at 2275; Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1316 (11th Cir.
2001); see also Clegg v. Falcon Plastics, Inc., No. 05-1826 (3d Cir. Apr. 6, 2006);
White v. BFI Waste Servs., LLC, 375 F.3d 288, 299-300 (4th Cir. 2004).
Accordingly, summary judgment was improper on this claim.
B. Motion to Strike Claim
Next, we review the district court’s decision to strike 50 passages from the
plaintiffs’ response in opposition to summary judgment. Generally, the passages
referenced portions of the plaintiffs’ deposition testimony during which they
attributed certain damaging facts and statements to other MAE employees. In its
motion to strike, MAE argued–in many instances, in a conclusory fashion–that the
passages misstated the deposition testimony and consisted of inadmissible hearsay,
double hearsay, opinion, speculation, and conjecture. Without identifying any
particular passage, the plaintiffs generally responded that each could be considered
25
at summary judgment because they could be reduced to admissible form at trial or
could be admissible under a hearsay exception, such as an admission by a party-
opponent. The court summarily granted the motion for the reasons MAE put forth.
At the summary judgment stage, we must reverse the district court’s ruling,
despite the discretion we afford district courts on evidentiary issues. See Hall v.
United Ins. Co. of Am., 367 F.3d 1255, 1259 (11th Cir. 2004) (ruling that we
reverse the district court’s evidentiary rulings only when substantial prejudice
exists). We have serious doubts as to the merits of many of MAE’s objections.
For instance, MAE moved to strike the passage in which the plaintiffs wrote,
“Though Mack has been employed at MAE for four years, he has never been
selected to go to a systems educational course to learn the systems of an aircraft.
In Mack’s opinion, this hampers his ability to receive promotions and raises.”
MAE argued that “this passage contains Mack’s speculation about the application
of promotion policies to him.” Presumably, MAE was attempting to argue that
Mack’s opinion was false and that his lack of education had not, in fact, affected
his ability to be promoted.
We cannot affirm the striking of this passage in the plaintiffs’ responsive
pleading on this ground. Mack was permitted to testify as to his opinion because
his testimony was “(a) rationally based on [his] perception . . . , (b) helpful to a
26
clear understanding of the issue, and (c) not based on scientific, technical, or other
specialized knowledge . . . .” Fed. R. Evid. 701. Mack’s opinion testimony was
“predicated upon [his experience at MAE, which] he observed personally” and is
“[an opinion] that a normal person might draw from those observations.” Argo Air
Assocs., Inc. v. Houston Cas. Co., 128 F.3d 1452, 1456 (11th Cir. 1997) (citations
and quotations omitted) (affirming the admission of lay witnesses’ opinion
testimony). MAE’s objection was not appropriate at the summary judgment stage
because it “went to the weight of the [testimony], not to its admissibility.”1 See id.
Furthermore, we cannot affirm the striking of any passage on the basis that it
constitutes inadmissible hearsay evidence because the passages are not evidence at
all–they are the plaintiffs’ arguments in their responsive pleading. For example,
MAE objected to the passage in which the plaintiffs wrote that “Charles Gennaro, a
supervisor, did not inform Wayne that he was required to see Bell or Wellington
per MAE’s harassment policy,” on the grounds that it was inadmissible hearsay
evidence. This objection lacks merit for two reasons. First, the passage is the
plaintiffs’ argument. It is not evidence. If MAE wanted to object to portions of the
1
MAE also moved to strike the following passage: “[I]n late 2003 McDonald was shown
by Jimmy Jones, a former MAE inspector, three photographs of nooses on MAE property. . . . In
McDonald’s opinion, such graffiti is overt and prevalent throughout the facility.” MAE argued
that this passage was inadmissible opinion testimony that “invades the province of the jury.” We
cannot affirm the striking of this passage because it, too, constitutes opinion testimony based on
personal observation and experience.
27
plaintiffs’ testimony as inadmissible hearsay, it should have moved to strike the
depositions themselves–not the plaintiffs’ opposition to summary judgment.
Second, Wayne’s testimony that Gennaro did not tell him that the company’s EEO
Policy required him to report harassment to Managers Bell or Wellington is not
hearsay. At his deposition, Wayne was asked, “[w]hen you complained to . . .
Charlie Gennaro about Robert Craft, did [he] say to you, ‘Hey, wait a minute, you
can’t complain to [me], you’ve got to go to George Bell or Dick Wellington?’”
Wayne replied, “No, sir, never.” Wayne’s testimony is not “a statement . . .
offered in evidence to prove the truth of the matter asserted,” Fed. R. Evid. 801(c),
because it is not a “statement” at all. A “statement” for purposes of the hearsay
rule is “an oral or written assertion.” Fed. R. Evid. 801(a)(1). Wayne did not testify
as to any “oral or written assertion” by Gennaro.
The problem with the court’s ruling on this motion was the parties’ failure to
argue fully the merits of MAE’s objections, coupled with the court’s summary
striking of each passage in the plaintiffs’ responsive pleading. Many of MAE’s
objections were to lengthy passages, which referenced multiple statements by the
plaintiffs. The court should have analyzed and ruled on each particularized
objection as to each statement. The court’s failure to do so leaves us with an
inadequate basis upon which to judge the court’s ruling. We refuse to affirm the
28
striking of a significant portion of the plaintiffs’ argument in their responsive
pleading without a proper understanding of the basis upon which the district court
ruled and without any underlying motions to strike portions of the depositions.
Accordingly, the district court’s blanket declaration that “the statements at issue
are inadmissible hearsay, double hearsay, opinion, speculation and/or conjecture”
was an abuse of discretion.
C. Disparate Treatment Claims
Finally, we consider whether the district court erred in entering summary
judgment on each of the plaintiff’s claims of disparate treatment in the terms and
conditions of their employment. We use the traditional McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) burden-shifting
analysis to evaluate these claims. First, the plaintiff must raise an inference of
discrimination through his prima facie case. Id. at 802, 93 S. Ct. at 1824. To
establish a prima facie case of disparate treatment, the plaintiff must show that: (1)
he belongs to a racial minority; (2) he was subjected to an adverse job action; (3)
his employer treated similarly situated employees outside his classification more
favorably; and (4) he was qualified to do the job. Id. The burden then shifts to the
defendant to “articulate some legitimate nondiscriminatory reason” for the alleged
discrimination. Id. Once the defendant produces such a reason, the plaintiff must
29
then prove that the legitimate reason was a mere pretext for discrimination. Id. at
804, 93 S. Ct. at 1826. To avoid summary judgment, the plaintiff must produce
sufficient evidence to show “that the employer intentionally discriminated against
him because of his race.” Holifield v. Reno, 115 F.3d 1555, 1565 (11th Cir. 1997)
(per curiam).
1. Mack’s Disparate Pay Claim
Plaintiff Mack alleged that his starting pay at MAE was less than similarly-
situated white employees, Joshua Frye, Matthew Wicks, Larry Givens, and
Michael Musante. He argued that he was hired at $9.50 per hour as an Apprentice,
while the others were hired at $10.50 or $11 per hour for the same position. To
establish a prima facie case, Mack must demonstrate that “similarly situated
comparators outside the protected class received higher compensation.” Cooper,
390 F.3d at 735.
We 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.” Knight v.
Baptist Hosp., Inc., 330 F.3d 1313, 1316 (11th Cir. 2003) (per curiam) (citations
30
and quotations omitted). Nor did Mack demonstrate that Givens was a similarly
situated comparator because he failed to present any admissible evidence as to
Givens’s salary. Mack’s third comparator, Musante, was hired as a Mechanic
I–not as an Apprentice–based on MAE’s initial evaluation of his experience.
Musante’s 90-day skill level evaluation revealed that he was not performing at the
requisite skill level of a Mechanic I, so MAE reclassified him as an Apprentice but
did not lower his pay, consistent with the company’s PPM. The fact that MAE
initially misjudged Musante’s qualifications does not show intentional race
discrimination. Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1261 (11th Cir.
2001) (ruling that an employer’s actions based on a mistaken, non-discriminatory
belief do not violate Title VII). Mack’s “opinion [that he was discriminated
against], without more, is not enough to establish a prima facie case of race
discrimination.” Holifield, 115 F.3d at 1564.
2. Mack’s Failure to Promote Claim
Plaintiff Mack also alleged that he was denied a skill-level promotion from
Apprentice to Mechanic I because of his race, while three white Apprentices (Frye,
Wicks, and Givens) were promoted after their initial six-month evaluation. To
establish a prima facie case, Mack must show that he was qualified for the skill
level promotion by demonstrating that he satisfied MAE’s reasonable
31
qualifications for the position. See Cooper, 390 F.3d at 741-43 (ruling that the
plaintiff’s own opinion of her qualifications for progression, without more, was
insufficient to overcome the employer’s judgment that she was not qualified).
We affirm the court’s entry of summary judgment on this claim because the
record revealed that Mack was not eligible for a promotion at six months under
MAE’s PPM because he did not have the required average performance evaluation
score of at least 5.0. Mack’s average was 4.9, while the alleged comparators’
averages were all 5.0 or higher. Therefore, Mack failed to demonstrate that he was
qualified for the skill-level promotion.
Mack also argued that he once again was denied a promotion from
Apprentice to Mechanic I after one year of employment because of his race. Mack
offered as evidence of discrimination Lead Holbrook’s statement that the reason
why his promotion had been delayed was because “you’re the wrong fucking
color.”
Here, Mack established a prima facie case of failure to promote. However,
Mack did not offer sufficient evidence of pretext to rebut MAE’s legitimate, non-
discriminatory reason for its failure to promote him–that MAE mistakenly failed to
perform his one-year evaluation, and that after it discovered the mistake, it
promoted Mack to Mechanic and paid him full back pay to account for the missing
32
evaluation. Holbrook’s statement is insufficient to show pretext because there was
no evidence that Holbrook was involved in any decisionmaking regarding Mack’s
promotion, that Holbrook was Mack’s supervisor at the time of the evaluation, or
that Holbrook’s statement was based on his knowledge of discrimination by any
other supervisor. Standing alone, this statement is insufficient to raise a genuine
issue of fact on pretext. Therefore, we affirm the district court’s entry of summary
judgment on this claim.
3. George’s Claim of Disparate Discipline
Plaintiff George claimed that he was demoted from Acting Lead to
Mechanic because of his race. He alleges that white Acting Leads, including Elliot
Lambert, Jeremy Lewis, and Scott Schnoes, were involved in the same kind of
incidents that led to his demotion, but they were not similarly demoted. In this
context, we consider “whether the employees are involved in or accused of the
same or similar conduct and are disciplined in different ways.” Maynard v. Bd. of
Regents of the Univ. of Fla. Dep’t of Educ., 342 F.3d 1281, 1289 (11th Cir. 2003)
(citations and quotations omitted). “We require that the quantity and quality of the
comparator’s misconduct be nearly identical to prevent courts from second-
guessing employers’ reasonable decisions and confusing apples with oranges.”
Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999).
33
We affirm summary judgment on this claim. George was not similarly
situated to Acting Leads Lambert and Lewis because, although all three were
involved in an incident causing aircraft damage, Lambert and Lewis were working
under the supervision of a different Program Manager–not the Program Manager
who decided to demote George. See Silvera, 244 F.3d at 1261 n.5 (ruling that
“differences in treatment by different supervisors or decision makers can seldom
be the basis for a viable claim of discrimination”). Moreover, George’s Program
Manager demoted him for the additional reasons that he was dissatisfied with the
work pace of George’s crew and that George did not supervise his crew closely
enough. Accordingly, George was not similarly situated to Lambert and Lewis
because the “quantity and quality of [their] misconduct [was] [not] nearly
identical.” Maniccia, 171 F.3d at 1368. George was not similarly situated to
Schnoes either because the two were not subject to the same standards of conduct.
See Holifield, 115 F.3d at 1562 (ruling that comparators must be “similarly situated
in all relevant aspects”). Although both George and Schnoes worked under the
same Program Manager, Schnoes was a Permanent Lead–not an Acting Lead.
MAE presented uncontroverted evidence that the same considerations do not
dictate removal of a Permanent Lead, and that removal of an Acting Lead is a
fairly common occurrence.
34
4. George’s Failure to Promote Claim
Plaintiff George claimed that he was denied a competitive promotion to
Project Manager because of his race and that Darren Macip, a white male, was
selected despite his inferior qualifications. MAE did not consider George for the
promotion because it had no record of him ever applying for the position and did
not receive his application.
We affirm summary judgment as to this claim because George did not
present evidence that MAE’s legitimate, non-discriminatory reason for not
selecting him was pretextual. George did not present any evidence that MAE
intentionally misplaced or discarded George’s application for Project Manager
because of his race, or for any other reason. “A plaintiff must show not merely that
the defendant’s employment decisions were mistaken, but that they were in fact
motivated by [race].” Lee v. GTE Fla., Inc., 226 F.3d 1249, 1253 (11th Cir. 2000)
(per curiam).
5. Mallory’s Claims of Disparate Treatment regarding OJT
Records and Failure to Train
Plaintiff Mallory alleged that white leads in his department, Scott Palmer
and Jim Walsh, hampered his promotional opportunities at MAE by intentionally
losing or manipulating his “on-the-job training” (“OJT”) records. OJT records are
company forms on which employees record the type of work that they perform on
35
a particular project and are used for determining promotions. Mallory also alleged
that Walsh refused to train him on the computer, while he trained white employees.
We affirm the district court’s entry of summary judgment on these claims
because Mallory failed to put forth evidence of any similarly-situated white
employee who was treated more favorably in terms of managing OJT records or
training. Moreover, Mallory failed to establish that he suffered an adverse
employment action. An adverse employment action must involve “an ultimate
employment decision . . . or other conduct that alters the employee’s compensation,
terms, conditions, or privileges of employment, deprives him . . . of employment
opportunities, or adversely affects his . . . status as an employee.” Gupta, 212 F.3d
at 587 (citation and quotation omitted). Mallory did not produce any evidence that
MAE’s mismanagement of his OJT records or its failure to train him on the
computer had any adverse affect on his employment.
6. McDonald’s Claim of Disparate Discipline
Plaintiff McDonald alleged that he was suspended for three days without pay
for his role in an incident that resulted in substantial damage to an aircraft, while
white employees who were also involved in the incident were not disciplined.
McDonald also alleged that he received a written disciplinary report for
insubordination when white employees who engaged in the same conduct were not
36
similarly disciplined. Here, we consider the “nature of the offenses committed and
the nature of the punishments imposed.” Silvera, 244 F.3d at 1259 (citations and
quotations omitted).
We affirm the district court’s entry of summary judgment regarding
McDonald’s three-day suspension because MAE’s investigation concluded that
both McDonald and Program Manager James Winkler, a white male, were partially
at fault and both received a three-day suspension. McDonald failed to show that a
similarly-situated white employee was treated more favorably. We also affirm as
to McDonald’s claim regarding the disciplinary report he received for
insubordination. MAE presented uncontroverted evidence that it investigated
McDonald’s complaint that the discipline was unfair and rescinded the discipline.
A disciplinary report does not rise to the level of an adverse employment action
where the employer rescinds its decision to take action before the employee suffers
a tangible harm. See Pennington v. City of Huntsville, 261 F.3d 1262, 1267 (11th
Cir. 2001).
7. Wayne’s Claim of Disparate Treatment regarding Work
Opportunities and OJT Records
Plaintiff Wayne alleged that two white supervisors lost or otherwise
mismanaged his OJT records, which resulted in lost promotional opportunities for
him. Wayne does not identify the white employees who were treated more
37
favorably than him, nor does he identify which promotions he believes he was
denied. Accordingly, we affirm the court’s entry of summary judgment on this
claim because he has failed to show that similarly-situated white employees were
treated more favorably than him. He has also failed to show that he suffered an
adverse employment action as a result of the mismanagement of his OJT records.
Wayne also alleges that he was required to take “credit time” off when work
was slow, while similarly-situated white employees were assigned to perform jobs
elsewhere. For example, he alleges that he was denied the opportunity to work on
the new “sink lock” 747 project, while a white crew was assigned the job. We
affirm summary judgment on this claim because Wayne provided no evidence to
support his claim other than his speculation. To avoid summary judgment, Wayne
“must do more than show that there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106
S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). Meanwhile, MAE provided
uncontroverted evidence that a significant number of white employees were
required to take “credit time” off during the same time frame when work was slow.
Therefore, Wayne failed to show that similarly-situated white employees were
treated more favorably.
III. CONCLUSION
38
In conclusion, we reverse the entry of summary judgment on the plaintiffs’
hostile work environment claim and MAE’s Faragher defense because, viewing
the entirety of the record, in the light most favorable to the plaintiffs, there remain
genuine issues of material fact. We remand the hostile work environment claim
and the Faragher defense for trial. We reverse the district court’s ruling granting
MAE’s motion to strike portions of the plaintiffs’ responsive pleading opposing
summary judgment. At trial, the district court will need to address separately each
portion of the disputed testimony if and when the plaintiffs present such testimony
and if and when MAE objects to the admission of such testimony. Finally, we
affirm the entry of summary judgment on each of the plaintiffs’ disparate treatment
claims for the reasons stated.
AFFIRMED in part, REVERSED and REMANDED in part.
39
MacK v. St Mobile Aerospace Engineering, Inc.
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2006-07-31
Citations: 195 F. App'x 829
Copy CitationsCombined Opinion