MacK v. St Mobile Aerospace Engineering, Inc.

[DO NOT PUBLISH]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

14
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

16
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

23
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

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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.

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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

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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