               Case: 12-11507        Date Filed: 06/17/2014      Page: 1 of 38


                                                                              [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 12-11507
                                   Argument Calendar
                               ________________________

                         D.C. Docket No. 1:08-cv-00155-KD-N

ROBERT ADAMS, NELSON BUMPERS,
FREDERICK A. CARTER, SR.,
ALVIN CUNNINGHAM, SIDNEY HEDGEMAN,
TESHA HOLLIS, LARRY J. LAFFIETTE,
RON LAW, JEROME PETTIBONE,
RAHMAN K. PRATT, NATHANIEL L. REED,
CAROLYN SLAY, GLORIA SULLIVAN,
FRANKLIN THOMAS, FREDERICK WILLIAMS,

                                                                        Plaintiffs-Appellants,

                                            versus

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

                                                                        Defendant-Appellee.
                               ________________________

                     Appeals from the United States District Court
                        for the Southern District of Alabama
                            ________________________
                                   (June 17, 2014)

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

*
  Honorable Lee H. Rosenthal, United States District Judge for the Southern District of Texas,
sitting by designation.
              Case: 12-11507     Date Filed: 06/17/2014    Page: 2 of 38


PRYOR, Circuit Judge:

      This appeal involves complaints of a racially hostile work environment at a

shipyard in Mobile, Alabama, owned by Austal, U.S.A., L.L.C. The complaints

allege harassment that included vulgar racial graffiti in the men’s restroom,

appearances of nooses, displays of Confederate flags, and utterances of racial slurs.

For almost ten years, Austal repeatedly scrubbed the graffiti from the restroom

walls until it finally wised up and painted the walls black. For the most part, the

graffiti then ceased. Eventually, 24 African-American current and former

employees of Austal filed complaints of racial discrimination. The district court

granted summary judgments against the claims of 13 of the employees on the

ground that their work environments were not objectively hostile. The district court

divided the claims of the remaining plaintiffs to be adjudicated in multiple jury

trials. This appeal concerns the 13 orders granting summary judgment in favor of

Austal and the jury verdicts against two of the plaintiffs who went to trial, all of

which involve claims of a hostile work environment.

      In this appeal, we must decide whether an employee may rely on evidence of

racial harassment of which he is not personally aware to prove that his work

environment was objectively hostile. Although we have held that an employee may

introduce evidence of harassment which he is not personally aware to prove that

                                           2
             Case: 12-11507     Date Filed: 06/17/2014   Page: 3 of 38


his employer is responsible for the harassment or to rebut an affirmative defense,

Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1286–87 (11th Cir. 2008), our

Court has not ruled that this kind of “me too” evidence can prove that a work

environment is objectively hostile. We now hold that an employee alleging a

hostile work environment cannot complain about conduct of which he was

oblivious for the purpose of proving that his work environment was objectively

hostile. We nevertheless conclude that seven of the employees presented sufficient

evidence that their work environments were objectively hostile, and we vacate the

summary judgments against them. We affirm the summary judgments against the

remaining six employees and affirm the two jury verdicts.

                                I. BACKGROUND

      Austal is an Australian company that builds custom aluminum ships for

commercial and military use. In 1998, Austal established a shipyard in Mobile,

Alabama. Austal began operations with fewer than 100 employees, but it currently

employs more than 2,000 workers.

      The record contains substantial evidence of serious racial misconduct at the

shipyard owned by Austal. Austal disputes much of this evidence, but we view the

evidence in the light most favorable to the plaintiff. Hamilton v. Southland

Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012). The employees allege,

                                          3
              Case: 12-11507     Date Filed: 06/17/2014   Page: 4 of 38


for example, that vulgar racial graffiti of the following kind frequently appeared in

the men’s restrooms on its premises: “see, niggers travel in packs just like

monkeys”; “[t]he only people wearing union shirts are the lazy-ass niggers”;

“[h]ow do you keep ten niggers from raping your wife, give them a basketball”;

“white is right”; “why don’t niggers use aspirin? Because they don’t want to pick

the cotton off the top”; “I’m not a full-fledged white man until I split the raw, black

oak”; “KKK is getting bigger”; “[h]ow do you starve a nigger to death? Hide his

food stamp card in his work boots.” Austal cleaned the bathroom every few weeks

and eventually painted the walls black. Several of the employees also saw or heard

about a noose found in the breakroom at Austal in May 2008. Some employees

saw multiple nooses. In total, employees discovered eight nooses at Austal while

the plaintiffs worked there. Several of the employees’ white counterparts also

offended them by wearing or displaying Confederate flag paraphernalia. And

several employees allege that white supervisors and coworkers called them or

another African-American employee “boy,” “monkey,” and “Jeffrey.”

      A key dispute involves the frequency of exposure to the racial misconduct

that each employee experienced. When it moved for summary judgment against all

the claims of a racially hostile work environment, Austal contested whether the

employees had proffered substantial evidence that a reasonable person would find

                                          4
              Case: 12-11507    Date Filed: 06/17/2014    Page: 5 of 38


the racial harassment of each employee sufficiently severe or pervasive. The

district court granted 13 of the motions for summary judgment in favor of Austal.

      For 13 of the employees—Robert Adams, Nelson Bumpers, Alvin

Cunningham, Tesha Hollis, Larry Laffiette, Ron Law, Jerome Pettibone, Rahman

Pratt, Nathaniel Reed, Carolyn Slay, Gloria Sullivan, Franklin Thomas, and

Frederick Williams—the district court ruled that “a reasonable jury could not find

that the harassing conduct alleged was frequent and severe.” The district court

explained that not all of the employees shared the same supervisor, worked in the

same department, or were employed during the same time periods. As a result, the

district court evaluated each claim of a hostile work environment based on “the

specificity and quantity of evidence presented by each plaintiff.” And the district

court considered whether each employee had been aware of the harassment; the

district court ruled that each employee could not use evidence of racial misconduct

to prove that his hostile work environment was objectively hostile if the employee

had been unaware of that misconduct.

      Before the trial of Frederick Carter’s and Sidney Hedgeman’s claims of a

racially hostile work environment, Austal filed a motion in limine to exclude “me

too” testimony about other employees. The district court limited Carter’s and

Hedgeman’s evidence to incidents of which at least one of them was aware. Carter

                                          5
              Case: 12-11507    Date Filed: 06/17/2014    Page: 6 of 38


and Hedgeman moved to alter or amend that ruling, but the district court denied the

motion and explained that its order was only preliminary. During trial, the district

court revisited its preliminary ruling and allowed Carter and Hedgeman to present

evidence of racial harassment by any of their supervisors against other employees.

      The district court used the 2005 Eleventh Circuit Pattern Jury Instructions to

explain as follows the difference between liability premised on a supervisor’s

actions and liability premised on a coworker’s actions:

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

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

             To find that a supervisor had constructive knowledge of a
      hostile or abusive work environment, that is, that the supervisor
      should have known of such environment, the Plaintiff must prove that
      the hostile or abusive environment was so pervasive and so open and
      obvious that any reasonable person in the supervisor’s position would
      have known the harassment was occurring. Even though you may
      have already determined that the Plaintiff was, in fact, exposed to a
      hostile or abusive work environment, that alone is not determinative
      of the issue of the supervisor’s knowledge; rather, you must find that
                                          6
              Case: 12-11507    Date Filed: 06/17/2014    Page: 7 of 38


      discriminatory harassment to which the Plaintiff was exposed was so
      pervasive and unconcealed that knowledge on the part of the
      supervisor may be inferred.

      The district court also instructed the jury as follows that an employee must

be aware of an incident of racial misconduct to rely upon it as proof of a hostile

work environment:

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

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

decided separately:

            When more than one claim is involved and when more than one
      defense is asserted, you should consider each claim and each defense
      separately, but in deciding whether any fact has been proved by a
      preponderance of the evidence, you may consider the testimony of all
      the witnesses, regardless of who may have called them, and of all the
      exhibits received in evidence, regardless of who may have produced
      them.
      ...
      [But], even though five Plaintiffs are in trial together, when you
      consider the Plaintiffs’ claims, you must consider them individually.

      The jury returned verdicts against Hedgeman’s and Carter’s claims of a

hostile work environment, and the district court denied their motions for judgments

as a matter of law.
                                          7
              Case: 12-11507     Date Filed: 06/17/2014   Page: 8 of 38


      The 13 employees appeal the summary judgments, and Carter and

Hedgeman appeal the jury verdicts. After the parties submitted their briefs in this

appeal, Austal filed two motions. In the first motion, Austal asked our Court to

supplement the record with the employees’ initial disclosures. In the second

motion, Austal asked us to strike the employees’ expanded record excerpts, which

included portions of depositions that they did not submit to the district court.

                          II. STANDARDS OF REVIEW

      “We review de novo a district court’s grant of summary judgment and draw

all inferences and review all evidence in the light most favorable to the non-

moving party.” Hamilton, 680 F.3d at 1318 (internal quotation marks omitted). A

court should grant summary judgment only if the movant establishes that there is

no genuine dispute as to any material fact. Id.

      We review evidentiary rulings for an abuse of discretion. Piamba Cortes v.

Am. Airlines, Inc., 177 F.3d 1272, 1305 (11th Cir. 1999). “An abuse of discretion

occurs where the district court’s decision rests upon a clearly erroneous finding of

fact, an errant conclusion of law, or an improper application of law to fact.” United

States v. Jayyousi, 657 F.3d 1085, 1113 (11th Cir. 2011) (internal quotation marks

omitted). “We overturn evidentiary rulings only when the moving party has proved

a substantial prejudicial effect.” Judd v. Rodman, 105 F.3d 1339, 1341 (11th Cir.

                                           8
              Case: 12-11507      Date Filed: 06/17/2014   Page: 9 of 38


1997); see Perry v. State Farm Fire & Cas. Co., 734 F.2d 1441, 1446 (11th Cir.

1984) (explaining that errors in evidentiary rulings are “harmless if it does not

affect the substantial rights of the parties”).

      “We review jury instructions de novo to determine whether they misstate the

law or mislead the jury to the prejudice of the party who objects to them.” United

States v. Campa, 529 F.3d 980, 992 (11th Cir. 2008). “If the trial judge’s

instructions accurately reflect the law, he or she is given wide discretion as to the

style and wording employed in its instruction.” McCormick v. Aderholt, 293 F.3d

1254, 1260 (11th Cir. 2002). Under this deferential standard, we examine “whether

the jury charges, considered as a whole, sufficiently instructed the jury so that the

jurors understood the issues and were not misled.” Roberts & Schaefer Co. v.

Hardaway Co., 152 F.3d 1283, 1295 (11th Cir. 1998). We will not reverse the

district court unless we are “left with a substantial and ineradicable doubt as to

whether the jury was properly guided in its deliberations.” Id.

                                  III. DISCUSSION

      We divide our discussion in two parts. First, we discuss whether the district

court erred when it granted summary judgment against 13 employees on their

claims of a racially hostile work environment. Second, we discuss whether the




                                            9
              Case: 12-11507     Date Filed: 06/17/2014    Page: 10 of 38


district court abused its discretion in its evidentiary rulings and correctly stated the

law when it instructed the jury in Carter and Hedgeman’s trial.

 A. The District Court Erred When It Granted Summary Judgment Against Hollis,
  Reed, Pettibone, Law, Bumpers, Williams, and Laffiette, but Correctly Granted
               Summary Judgment Against the Other Six Employees.

      To establish a claim of a hostile work environment, an employee must prove

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 (1993). The employee must prove five

elements if he bases his harassment claim on race: (1) that he is a member of a

protected class; (2) that he was subjected to unwelcome racial harassment; (3) that

the harassment was based on his race; (4) that the harassment was severe or

pervasive enough to alter the terms and conditions of his employment and create a

discriminatorily abusive working environment; and (5) that the employer is

responsible for the environment under a theory of either vicarious or direct

liability. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002).

      Austal conceded the first three elements for the purposes of summary

judgment and argued that the undisputed facts concerning the fourth and fifth

elements entitled it to summary judgment. The fourth element requires a plaintiff

                                           10
             Case: 12-11507     Date Filed: 06/17/2014    Page: 11 of 38


to prove that the work environment is both subjectively and objectively hostile.

Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999). “The employee

must ‘subjectively perceive’ the harassment as sufficiently severe and pervasive to

alter the terms or conditions of employment, . . . [and] ‘the objective severity of

harassment should be judged from the perspective of a reasonable person in the

plaintiff’s position, considering all the circumstances.’” Id. (quoting Oncale v.

Sundowner Offshore Servs., Inc., 532 U.S. 75, 81, 118 S. Ct. 998, 1003 (1998)).

The fifth element requires a plaintiff to prove that the employer is responsible for

the hostile work environment because of actions taken by either a supervisor or a

coworker. Miller, 277 F.3d at 1278. In the 13 orders granting summary judgment

to Austal, the district court found that each employee subjectively perceived the

harassment as sufficiently severe and persuasive, but that the work environment

was not objectively hostile. Because it resolved all the summary judgments on the

fourth element, the district court did not address whether Austal was responsible

for the hostile work environment.

      The 13 employees against whom summary judgment was entered argue that

the district court erred in three ways when it ruled that the work environment at

Austal was not objectively hostile. First, the employees argue that the district court

erred by considering whether the work environment was objectively offensive as to

                                          11
             Case: 12-11507     Date Filed: 06/17/2014    Page: 12 of 38


a Caucasian employee instead of an African-American employee. Second, the

employees argue that the district court erred by failing to consider evidence of

racial harassment of which the individual employees were unaware. Third, the

employees argue that the record contains genuine disputes of material facts that the

district court should have submitted to the jury. We discuss each argument in turn.

   1. The District Court Applied the Correct Standard for a Reasonable Person.

      The district court applied the correct standard for a reasonable person when

it explained that the harassment must result in both an environment that a

reasonable person would find hostile or abusive and an environment that the victim

subjectively perceived to be abusive. The district court ruled that the record

established that 13 of the employees subjectively believed the work environment at

Austal was abusive, but that these 13 employees failed to establish that a

reasonable person in each of their positions would also find the environment

abusive. The employees argue that, because the district court determined that the

remaining 10 employees satisfied the objective component, it was inconsistent to

hold that the 13 employees failed to establish the objective component. But the

district court correctly recognized that the employees worked in different

departments for different supervisors at different times. And, as Austal argues, the

employees point to nothing in the record to suggest, or even hint, that the district

                                          12
             Case: 12-11507     Date Filed: 06/17/2014    Page: 13 of 38


court evaluated the objective component of their claims based on the perspective of

a “Caucasian in Mobile, Alabama,” as the 13 employees assert in their brief.

   2. The District Court Correctly Considered Only Evidence About Which the
                       Individual Employees Were Aware.

      The district court also correctly limited its consideration to incidents of

racial harassment of which the individual employees were aware. The 13

employees argue that the district court erred in failing to consider all incidents,

even those they did not know about, in evaluating the objective component of their

claims. Our precedents direct district “courts [to] examine the conduct in context,

not as isolated acts, and determine under the totality of the circumstances whether

the harassing conduct is sufficiently severe or pervasive to alter the terms or

conditions of the plaintiff’s employment and create a hostile or abusive working

environment.” Mendoza, 195 F.3d at 1246. The totality of a plaintiff’s workplace

circumstances does not include other employees’ experiences of which the plaintiff

is unaware. Courts conduct the objective assessment from the perspective of a

reasonable person in the plaintiff’s position, knowing what the plaintiff knew. Id.

A reasonable person in the plaintiff’s position is not one who knows what the

plaintiff learned only after her employment ended or what discovery later revealed.

      Other circuits follow this approach. See Brooks v. City of San Mateo, 229

F.3d 917, 924 (9th Cir. 2000) (“Harassment directed towards others of which an
                                          13
             Case: 12-11507     Date Filed: 06/17/2014   Page: 14 of 38


employee is unaware can, naturally, have no bearing on whether she reasonably

considered her working environment abusive.”); see also Cottrill v. MFA, Inc., 443

F.3d 629, 637 (8th Cir. 2006) (“We first consider Cottrill’s hostile work

environment claim. Cottrill was not aware of the peeping [tom], . . . [so] Cottrill

may not rely on the peeping to establish that her work environment was hostile.”);

Pryor v. Seyfarth, Shaw, Fairweather & Geraldson, 212 F.3d 976, 978 (7th Cir.

2000) (“Insofar as Woodford harassed other employees, and did so without (so far

as appears) [plaintiff’s] knowledge, it could not have altered her conditions of

employment, and so she could not complain about that harassment under Title

VII.”); Burnett v. Tyco Corp., 203 F.3d 980, 981 (6th Cir. 2000) (holding that

evidence that the plaintiff’s coworkers experienced harassment was “irrelevant at

this stage to plaintiff’s hostile work environment claim because there is no

evidence that plaintiff was aware of these actions at the time.” (internal quotation

mark and alterations omitted)); Hirase-Doi v. U.S. W. Commc’ns, Inc., 61 F.3d

777, 782 (10th Cir. 1995) (“US West correctly asserts that Doi may only rely on

evidence relating to harassment of which she was aware during the time that she

was allegedly subject to a hostile work environment.”). We agree with these courts

that a district court should not consider evidence of racial harassment of other

employees—evidence that the plaintiff did not know about—in evaluating the

                                          14
             Case: 12-11507     Date Filed: 06/17/2014    Page: 15 of 38


objective component of a claim of a hostile work environment.

3. The Record Presents Genuine Disputes of Material Facts Only for Hollis, Reed,
               Pettibone, Law, Bumpers, Williams, and Laffiete.

      The 13 employees argue that the district court erred when it ruled that the

record does not contain genuine disputes of material fact concerning whether the

work environment was objectively hostile. To evaluate whether a work

environment is objectively hostile, we consider four factors: “(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. In the light of these factors, we ask whether, under the totality of

the circumstances, a reasonable person would find the harassing conduct severe or

pervasive to alter the terms or conditions of the plaintiff’s employment. Id.

      Our decision in Jones v. UPS Ground Freight is instructive. In that case, we

ruled that a truck driver established a genuine dispute of material fact about

whether harassing conduct at his workplace created an objectively hostile work

environment. 683 F.3d 1283 (11th Cir. 2012). The truck driver, who was African

American, had presented evidence that a coworker told him, “I know how to train

you Indians.” Id. at 1288. When the driver replied that he was not Indian, the

coworker said, “I don’t care what race you are, I trained your kind before.” Id. He
                                          15
             Case: 12-11507    Date Filed: 06/17/2014   Page: 16 of 38


also presented evidence that people were leaving banana peels on his truck to

harass him, that employees were wearing Confederate apparel around the worksite,

and that two coworkers approached him at night with a crowbar to ask if he had

reported to their manager the banana peels and Confederate apparel. Id. at 1289–

90. We reversed a summary judgment against the driver and ruled that he had

presented a disputed issue of material fact concerning whether his work

environment was objectively hostile. Id. at 1304.

      When we apply the four factors that govern whether a work environment is

objectively hostile and compare the harassment experienced by the employees at

Austal to the harassment experienced by the truck driver in Jones, we conclude

that several of the employees presented sufficient evidence of an objectively

hostile work environment. The record presents genuine disputes of material facts

about whether the work environments of Hollis, Reed, Pettibone, Law, Bumpers,

Williams, and Laffiete were objectively hostile, but the record presents no genuine

dispute of material facts as to Adams, Cunningham, Pratt, Slay, Sullivan, and

Thomas.

      We deny as moot the motion filed by Austal to strike the employees’

expanded record excerpts. To evaluate each employee’s claim, we rely only on the

evidence that the employee or Austal submitted to the district court at summary

                                         16
             Case: 12-11507        Date Filed: 06/17/2014   Page: 17 of 38


judgment, and we do not consider evidence from the expanded record excerpts not

submitted to the district court.

                                     a. Tesha Hollis

      The record presents a genuine dispute of material facts that Hollis’s

workplace was objectively hostile. In the three years that she worked at Austal, she

discovered a noose in the breakroom and another noose that someone had hung on

one of the ships. Her supervisor pretended to masturbate in front of her while

telling her that a racist and perverse drawing of her appeared in the men’s

restroom, and she saw the drawing in the men’s restroom. The caption to the

drawing stated, “[Y]’all got a bad ass nigger bitch working over here . . . . [A]

white man like me would love to split that dark oak.” Hollis also heard white

employees, most of whom were supervisors, call black employees “boy” on

“many” occasions, and she once heard someone say over the work walky-talky

system, “[S]end some monkeys over here.” She observed a white employee, who

called black employees “boy” and “monkey,” kick a black employee. And “every

morning” she saw white employees on her crew wear clothing and accessories with

the Confederate flag.

      Hollis raises a disputed issue that the harassment she experienced was

frequent, severe, and humiliating. The racist graffiti in the men’s restroom depicted

                                            17
             Case: 12-11507     Date Filed: 06/17/2014   Page: 18 of 38


her, the caption included a threatening and humiliating racial slur, and her

supervisor told her about the drawing while pretending to masturbate. She

discovered the noose in the breakroom, which a reasonable person could find

threatening. She also frequently heard white employees call black employees

“boy,” and she saw a Confederate flag every morning. A reasonable jury could find

that her workplace was objectively hostile.

                                 b. Nathaniel Reed

      The record also presents a genuine dispute of material facts that Reed’s work

environment was objectively hostile. Reed worked for Austal for two and a half

years, during which he heard racial slurs and saw racist graffiti in the men’s

restrooms “every[ ]day.” He “could not use the restroom without seeing a racial

slur or remark on the wall,” and “every now and then,” he saw racist graffiti, such

as “I hate niggers,” on a boat that he helped build. His supervisor, who is white,

called him “boy” on “several” occasions. See Ash v. Tyson Foods, Inc., 664 F.3d

883, 897 (11th Cir. 2011) (“[T]he decision maker[] used the word ‘boy’ in a

racially demeaning way.”). Reed also saw Austal employees, including

supervisors, wear apparel with Confederate flags “every day.” And he learned that

a white coworker called a black coworker a “black bitch.”




                                         18
             Case: 12-11507     Date Filed: 06/17/2014    Page: 19 of 38


      Reed raises a disputed issue that the harassment he experienced was frequent

and severe. Even though Austal cleaned the racist graffiti regularly, it filled the

walls of the restroom that he used daily, and he also saw racist graffiti on the ship

where he worked. He also heard racial slurs every day and saw employees and

supervisors wear Confederate flags every day. And his supervisor called him “boy”

on “several” occasions. A reasonable jury could find that his workplace was

objectively hostile.

                                 c. Jerome Pettibone

      The record also presents a genuine dispute of material facts that Pettibone’s

work environment was objectively hostile. Pettibone worked for Austal for over

three years, during which he saw racist graffiti in the bathroom on multiple

occasions, saw Confederate flags displayed by multiple coworkers “all through the

building,” and saw a drawing of a hangman with the caption “niggers.” Pettibone

was one of the employees who discovered the noose in the breakroom, and his

coworkers accused him of hanging it. He also heard secondhand about other

nooses and racial slurs. One of the slurs was made by his supervisor, who had said,

“[Y]ou can get a lot of free slavery . . . . A lot of hard work with cheap slave labor

done.” And he heard about another white supervisor kicking two black employees.




                                          19
             Case: 12-11507     Date Filed: 06/17/2014    Page: 20 of 38


      Pettibone raises a disputed issue that the harassment he experienced was

frequent and severe. Although Austal regularly removed the racist graffiti, he saw

it frequently. He also frequently saw coworkers wearing the Confederate flag. The

noose that he discovered and the stick figure with the noose and the caption

“niggers” was severe, especially because he saw them both firsthand. And the slur

by his supervisor, although not directed toward Pettibone, related directly to work

at Austal by black employees. A reasonable jury could find that his workplace was

objectively hostile.

                                     d. Ron Law

      The record presents a genuine dispute of material facts that Law’s work

environment was objectively hostile. Law worked at Austal for two and a half

years, during which he observed racially harassing conduct firsthand. He regularly

saw racist graffiti in the men’s restrooms, and he also saw racial slurs written in the

aluminum on the ship where he worked. He was one of the employees who saw the

noose in the breakroom, and he heard about two other nooses. He saw a stick

figure with a noose around its neck with the slur “nigger” written on it, and he

heard from a coworker that a supervisor was “climbing around like a monkey

through the boat” and “making monkey sounds.” He also saw a coworker wear a

shirt and belt buckle with the Confederate flag, but only twice. Law heard a

                                          20
             Case: 12-11507     Date Filed: 06/17/2014    Page: 21 of 38


supervisor request over the work walky-talky that someone “send him some

monkeys” to help lift heavy items in the shipyard. And he heard a white employee

say that “where he [is] from, they hang . . . niggers.”

      Law raises a disputed issue that the harassment he experienced was frequent

and severe. Like Pettibone, he frequently saw racist graffiti in the men’s restroom,

he discovered the noose in the breakroom, and he saw the stick figure with a noose

around its neck and the caption “niggers.” Law also saw racist graffiti on the ship

where he worked, heard a supervisor request “monkeys” over the walky-talky, and

heard a coworker talk about hanging niggers. A reasonable jury could find that his

workplace was objectively hostile.

                                 e. Nelson Bumpers

      The record presents a genuine dispute of material facts that Bumpers’s work

environment was objectively hostile. Bumpers worked for Austal for five and a

half years. He saw racist graffiti “all the time” when he used the men’s restrooms,

and he saw his white coworkers wear shirts with Confederate flag apparel

“numerous times.” He also twice heard his supervisor call black people “blue

gums.” See, e.g., Sherpell v. Humnoke Sch. Dist. No. 5, 619 F. Supp. 670, 678

(E.D. Ark. 1985) (recognizing “blue-gums” as a racial slur). The second time, the

supervisor approached him directly and asked if he knew that “there was a tree

                                          21
             Case: 12-11507     Date Filed: 06/17/2014    Page: 22 of 38


called blue gum.” Bumpers was aware of the noose in the breakroom, but was not

one of the employees who discovered it.

      Bumpers raises a disputed issue that the harassment he experienced was

frequent, severe, and humiliating. He frequently saw the racist graffiti in the men’s

restrooms and also frequently saw white employees wearing a Confederate flag

shirt. He also heard his supervisor call black people “blue gums,” and his

supervisor asked him specifically about the derogatory term. That harassment,

although infrequent, was severe and humiliating. He heard about the noose, which

is a severe form of racial harassment, but his experience was less severe because he

did not see it firsthand. Although it is a closer question than Hollis, Reed,

Pettibone, and Law, a reasonable jury could find that his work environment was

objectively hostile.

                               f. Frederick Williams

      The record presents a genuine dispute of material facts that Williams’s work

environment was objectively hostile. Williams worked for Austal for about a year,

during which no one ever “verbally” said anything racist to him and no Caucasian

employee ever used the slur “nigger” around him. But he saw one coworker wear a

shirt with a Confederate flag and regularly saw racist graffiti in the men’s

restroom. He reported the racist graffiti to his supervisor, who told Williams that

                                          22
             Case: 12-11507     Date Filed: 06/17/2014    Page: 23 of 38


“it’s always been like that and if [he] didn’t like it [he could] quit.” Williams was

working on part of a ship with his supervisor, who carved the slur “porch

monkeys” into the aluminum; Williams “questioned” his supervisor about the slur,

and the supervisor then “sanded it off.” And on the day that Williams quit his job

at Austal, which was after he had filed his discrimination claim, his supervisor “got

in [his] face, less than an inch from [his] lips, screaming and hollering” and told

him that “he wasn’t a goddamn racist.”

      Williams raises a disputed issue that the harassment he experienced was

frequent and severe. Although his exposure to the Confederate flag was limited, he

saw the racist graffiti in the men’s restroom regularly. And like Bumpers, his

supervisor humiliated him with a racial slur. Although his supervisor’s carving was

an isolated act, it was severe. A reasonable jury could find that Williams’s work

environment was objectively hostile.

                                  g. Larry Laffiette

      The record presents a genuine dispute of material facts that Laffiette’s

workplace was objectively hostile. He worked for Austal for roughly three years,

during which he thought he heard a coworker once say to him, “Where you been

at, nigger?” but he “couldn’t really make out” what was said and he “wasn’t sure”

if the coworker said the slur “nigger.” His supervisor called him “boy” “all the

                                          23
             Case: 12-11507     Date Filed: 06/17/2014   Page: 24 of 38


time,” which he clarified was “over ten times.” Two other coworkers called him

“boy,” “over ten times” and “over 50 times,” respectively. He saw racist graffiti

“all the time” in “pretty much all of” the restrooms that he used at work. He also

saw several employees wear apparel with the Confederate flag, although “none of

them worked on [his] crew.” And his coworker showed him a photograph of a

noose in the breakroom.

      Laffiette raises a disputed issue that the harassment he experienced was

frequent and severe. Laffiette frequently experienced racial harassment by his

supervisor’s and coworkers’ references to “boy,” and he also frequently saw racist

graffiti in the men’s restrooms. And the photograph of the noose was severe, but

less severe than if he had discovered the noose firsthand. Because of the frequency

with which he was called “boy” and saw the racist graffiti, combined with the other

harassment of which he learned secondhand, a reasonable jury could find that his

workplace was objectively hostile.

                                 h. Robert Adams

      Unlike the previous employees, the record does not present a genuine

dispute of material facts concerning Adams’s work environment. Adams worked

for Austal for two years. He saw his coworkers wear the Confederate flag on a

regular basis, and he saw racist graffiti in the men’s restroom that he used on a

                                         24
             Case: 12-11507     Date Filed: 06/17/2014   Page: 25 of 38


daily basis. Otherwise, the racial harassment he experienced was isolated. He heard

people say the slur “nigger,” but only a “few times” over two years, and he heard

about the noose in the breakroom, although he did not see it himself.

      Adams failed to establish a disputed issue concerning his work environment.

Like many of the employees, Adams frequently saw the racist graffiti in the men’s

restrooms and frequently saw the Confederate flag. But Austal regularly cleaned

the graffiti, and Law’s exposure to the Confederate flag was not directly

humiliating or threatening. As to the slur “nigger,” he heard it only a few times

over several years, and he did not offer evidence that a supervisor used the word or

that anyone directed it toward him. And he did not see the noose in the breakroom.

Considering the totality of the circumstances, a reasonable jury would not find that

his workplace was objectively hostile.

                               i. Alvin Cunningham

      The record also does not present a genuine dispute of material facts

concerning Cunningham’s work environment. Cunningham worked for Austal for

eight months, during which he heard a white coworker say “nigger” and heard a

supervisor say “nigger” in front of him, but the slurs were not directed at him and

he did not work for the supervisor or remember his name. He once saw a

Confederate flag, and an employee showed him a photograph of nooses while

                                         25
             Case: 12-11507     Date Filed: 06/17/2014    Page: 26 of 38


smiling, but that employee “never engage[d] in th[at] type of behavior” after

Cunningham reported it, and that employee later became “somewhat [his] best

friend.” He also saw the graffiti in the men’s restrooms, but he did not remember

any specifics.

       Cunningham fails to raise a disputed issue concerning his work environment.

The racial harassment experienced by Cunningham was not frequent, and although

the use of the slur “nigger” is severe, it was not directed toward him or directly

humiliating or threatening to him. Cunningham could not recall any specifics about

the graffiti in the restroom. The other incidents of harassment were not directed

toward him, were not made by his supervisor, and he did not experience them

firsthand. A reasonable person would not find that his work environment was

hostile.

                                  j. Rahman Pratt

       The record does not present a genuine dispute of material facts concerning

Pratt’s work environment. Pratt worked for Austal for seven months, during which

“no white employee made a racially discriminatory comment directly toward” him,

but he heard “little comments being made . . . about black people, in general.” He

once overheard a white coworker, talking to other white coworkers, say that “h[e]

and a nigger got into it” and that he would “hang that nigger, and shoot that

                                          26
             Case: 12-11507     Date Filed: 06/17/2014   Page: 27 of 38


nigger.” That employee also called black people “monkeys” during the

conversation. He heard about comments from other coworkers and saw several

employees wear apparel with the Confederate flag. He also saw racist graffiti in the

men’s restrooms and complained about it several times.

      Pratt fails to establish a disputed issue of material facts concerning his work

environment. The racist graffiti in the bathroom was frequent, but Austal regularly

cleaned it and none of the drawings targeted him specifically. He frequently saw

employees wear apparel with the Confederate flag, but his exposure to the symbol

was not humiliating or threatening. The racist conversation that he overheard was

isolated and not directly threatening or humiliating to him. Considering the totality

of the circumstances, a reasonable jury would not find that his workplace was

objectively hostile.

                                  k. Carolyn Slay

      The record does not present a genuine dispute of material facts concerning

Slay’s work environment. Slay worked at Austal for three and a half years, during

which no one directed racist comments at her personally. But she saw racist graffiti

on boxes that were in the women’s restroom, which said, “We don’t want to get

any nasty black and lazy people.” Austal removed the boxes after a month and the

graffiti stopped. She heard someone ask to “send over the monkeys” on the walky-

                                         27
             Case: 12-11507     Date Filed: 06/17/2014   Page: 28 of 38


talky. And she saw a toolbox with the phrase “don’t feed the monkeys.” She also

saw Confederate flags “[e]very day.”

       Slay learned about additional incidents of racial harassment from her

coworkers. Her coworker showed her photographs of racist graffiti in the men’s

restroom at least every week, she heard that white supervisors had complained in a

human resources meeting about Austal hiring black people, she saw a photograph

of the stick figure with a noose, she heard about the noose in the breakroom, and

she heard that a supervisor was harassing her black coworkers. She also stated in

her deposition that people vandalized her wielding machines, but she did not

introduce any evidence that the vandalism was related to her race.

      Slay fails to establish a disputed issue of material facts concerning her work

environment. She frequently saw coworkers wearing apparel with the Confederate

flag, which did not directly humiliate or threaten her. The only other harassment

she experienced firsthand was not pervasive or severe: She saw racist graffiti on

boxes in the women’s restroom, but it did not cover the walls, like the graffiti in

the men’s restroom. And the racial slur on the toolbox and the statement over the

walky-talky were isolated incidents that did not involve her directly. All of the

other harassment she learned about from other people. Even though others sent her

photographs of the graffiti in the men’s restroom “at least every week,” she

                                          28
             Case: 12-11507     Date Filed: 06/17/2014   Page: 29 of 38


willingly accepted the photographs and did not ask that they stop or tell the senders

that she felt harassed by them. Considering the totality of the circumstances, a

reasonable jury would not find that her workplace was objectively hostile.

                                 l. Gloria Sullivan

      The record does not present a genuine dispute of material facts concerning

Sullivan’s work environment. Sullivan worked at Austal for more than five years,

during which she once heard someone call her coworker “Darth Vader” and once

saw a stick figure of one of her black coworkers with a noose around the neck of

the figure. She heard a coworker use the slur “nigger,” but she explained that she

thought the person said it “[m]aybe in a joking manner,” it was “not an everyday

thing,” and she “c[ould]n’t recall” who said it. She was also “told by other

employees” that another employee “used the ‘N’ word” around Austal. She heard

secondhand that her coworker had seen apparel with a Confederate flag on it and

that employees had discovered three nooses at the workplace. She also once heard

a white employee call a black employee “boy,” and she stated that she heard the

word “boy” “[t]hroughout” her time at Austal, but she “c[ould]n’t recall” who said

it. And she saw cell phone photographs of “a lot of” the racist graffiti in the men’s

restrooms, but she could not “recall exactly what it was.”




                                          29
             Case: 12-11507     Date Filed: 06/17/2014    Page: 30 of 38


      Sullivan fails to raise a disputed issue concerning her work environment.

The harassment suffered by Sullivan was not frequent, she heard about most of it

secondhand, and the harassment never threatened her or humiliated her. And

although she saw “a lot of” the racist graffiti in the men’s restrooms, she saw it

because she willingly viewed photographs that her coworkers sent her, which is

significantly less severe than the experience of an employee who must view the

racist graffiti if he wants to use the restroom. She also did not personally see the

noose, but learned about it from other people. And she heard white employees call

black employees “boy,” but no one called her that name and she did not

sufficiently establish that she heard the slur frequently. A reasonable jury would

not find that her work environment was objectively hostile.

                                 m. Franklin Thomas

      The record does not present a genuine dispute of material facts concerning

Thomas’s work environment. He worked at Austal for five and a half years, during

which he “saw a lot” of racist graffiti in two of the men’s restrooms and saw white

employees’ paraphernalia with the Confederate flag. He also experienced three

specific instances of racial harassment: His white supervisor said to him, “Hey,

Frank, I told you I’m not racist[;] at home I have a color TV.” Thomas heard a

coworker say that when he got home “he was going to beat that nigger ass.” And a

                                          30
             Case: 12-11507     Date Filed: 06/17/2014    Page: 31 of 38


coworker once called him “boy.” Thomas talked to all three people after their

comments, and they never made racist comments to him again.

      Thomas fails to raise a disputed issue concerning his work environment.

Although he “saw a lot” of racist graffiti and the other incidents of racial

harassment were offensive, the harassment he experienced was not pervasive or

severe. And the comments he overheard were isolated and did not directly threaten

or humiliate him. A reasonable jury would not find that his workplace was

objectively hostile.

                                    *      *     *

      In the light of these facts, we vacate the summary judgments against Hollis,

Reed, Pettibone, Law, Bumpers, Williams, and Laffiete, and we remand their

claims of a racially hostile work environment to the district court to determine

whether Austal is entitled to summary judgment on the ground that it was not

directly or vicariously liable for the harassment or whether the employees’ claims

should proceed to trial. We affirm the summary judgments against the other six

employees.

      B. In Hedgeman and Carter’s Trial, the District Court Did Not Abuse Its
Discretion in Its Evidentiary Rulings and Correctly Stated the Law to the Jury.

      We divide our discussion of the issues raised on appeal related to the jury

verdicts against Hedgeman and Carter in three parts. First, we explain why the
                                          31
                Case: 12-11507   Date Filed: 06/17/2014   Page: 32 of 38


district court did not abuse its discretion when it excluded some “me too” evidence

and permitted Austal to present evidence in support of a Faragher defense.

Second, we explain why the district court correctly stated the law when it

instructed the jury. Third, we explain why Hedgeman and Carter waived their

remaining claims.

 1. The District Court Did Not Abuse Its Discretion When It Excluded “Me Too”
          Evidence and Permitted Austal to Raise a Faragher Defense.

      Hedgeman and Carter argue that the district court erred when it excluded

“me too” evidence, permitted Austal to raise an untimely Faragher defense, and

permitted Austal to call undisclosed witnesses. These arguments fail. We address

each in turn.

                         a. Exclusion of “Me Too” Evidence

      Neither our Circuit nor the Supreme Court has clearly defined the outer

bounds of admitting “me too” evidence to prove that an employer should be held

liable for a hostile work environment. We have allowed, as relevant and not overly

prejudicial, the admission of evidence of racial slurs that an employee did not hear

and epithets not directed at the employee, Busby v. City of Orlando, 931 F.3d 764,

785 (11th Cir. 1991), but we have not held that “me too” evidence about slurs of

which the employee was unaware can prove that the employee viewed his work

environment as hostile, cf. Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1522
                                          32
             Case: 12-11507     Date Filed: 06/17/2014    Page: 33 of 38


(11th Cir. 1995) (“[S]ome of the incidents relied upon were not made known to

Edwards until after her termination and, therefore, could not have contributed to

her subjective view of a hostile work environment.” (emphasis added)). In Bagby

Elevator Co., we affirmed the admission of “me too” evidence under Federal Rule

of Evidence 402, to support a claim of a hostile work environment because the

evidence proved that the employer, a small business, permitted the hostile

environment to exist and the evidence was relevant to issues raised either on cross-

examination or as an affirmative defense. 513 F.3d at 1286. But we did not address

whether the plaintiff was aware of the “me too” evidence.

      Even when “me too” evidence is relevant under Rule 401, the district court

retains the discretion to exclude that evidence, under Rule 403, if it is unduly

prejudicial, confusing, misleading, or cumulative. In Sprint/United Management

Co. v. Mendelsohn, the Supreme Court explained that the admissibility of evidence

of discrimination by other supervisors is not governed by a categorical rule, but is a

“fact-intensive, context-specific inquiry.” 552 U.S. 379, 388, 128 S. Ct. 1140, 1147

(2008). For example, unlike the small company in Bagby Elevator, Austal employs

over 2,000 workers across many departments and in different locations. The

response in one department or from one supervisor might vary greatly from




                                          33
             Case: 12-11507     Date Filed: 06/17/2014   Page: 34 of 38


another department or supervisor, and the decision to admit “me too” evidence

rests within the sound discretion of the district court under Rules 401 and 403.

      The district court did not abuse its discretion when it excluded the “me too”

evidence proffered by Hedgeman and Carter during their case in chief. During

trial, the district court admitted evidence of racial harassment by any supervisor of

the employee plaintiffs. The district court did not abuse its discretion by excluding

evidence about incidents of harassment of which Hedgeman and Carter were

unaware and that were unrelated to their supervisors. And Hedgeman and Carter

have failed to explain the substantial prejudice they suffered by the exclusion of

that evidence.

      Although “me too” evidence of which a plaintiff is unaware is admissible in

rebuttal to prove the ineffectiveness of an antiharassment policy, see Bagby

Elevator, 513 F.3d at 1286–87, Hedgeman and Carter failed to proffer any “me

too” evidence in rebuttal. Indeed, they offered no rebuttal evidence. The district

court could not have abused its discretion by excluding evidence that Hedgeman

and Carter never proffered.

                                b. Faragher Defense

      An employer can avoid liability for a hostile work environment by

maintaining an effective policy against harassment by a supervisor or coworker of

                                         34
             Case: 12-11507     Date Filed: 06/17/2014   Page: 35 of 38


the complaining employee. See Faragher v. City of Boca Raton, 524 U.S. 775,

807, 118 S. Ct. 2275, 2293 (1998). The Faragher defense has two elements: “(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 preventative or corrective opportunities provided by the

employer or to avoid harm otherwise.” Id. For harassment by a coworker, “the

employer will be held directly liable if it knew or should have known of the

harassing conduct but failed to take prompt remedial action.” Miller, 277 F.3d at

1278. An employee who complains about harassment by a coworker must prove

either actual or constructive knowledge of the employer. Id.

      The district court did not abuse its discretion when it permitted Austal to

present evidence in support of a Faragher defense at trial. Although Austal failed

to mention the term Faragher in its answer to the complaint, Austal raised a

generic defense that the plaintiffs “failed to mitigate their damages.” That pleading

of “failure to mitigate” sufficiently raised a Faragher defense. Austal later argued

the Faragher defense in its motions for summary judgment, and Hedgeman and

Carter responded to the Faragher defense on the merits. The district court also

provided preliminary jury instructions on the Faragher defense before trial. Any

failure by Austal to comply with Federal Rule of Civil Procedure 8(c) did not

                                         35
             Case: 12-11507     Date Filed: 06/17/2014   Page: 36 of 38


cause Hedgeman and Carter any prejudice. See Grant v. Preferred Research, Inc.,

885 F.2d 795, 797 (11th Cir. 1989).

                              c. Undisclosed Witnesses

      Lastly, Hedgeman and Carter argued that the district court abused its

discretion by permitting Austal to call undisclosed witnesses, but they waived this

argument because they failed to explain how the testimony of these witnesses

prejudiced them. The burden to prove that an evidentiary ruling was an abuse of

discretion and caused substantial prejudice lies with the objecting party. Judd, 105

F.3d at 1341. Hedgeman and Carter’s failure to do so waives such an argument.

Accordingly, we deny as moot the motion filed by Austal to supplement the record

with the employees’ initial disclosures, which listed the allegedly undisclosed

witnesses.

    2. The District Court Correctly Stated the Law When It Instructed the Jury.

      Hedgeman and Carter argue that the district court misstated the law in three

ways when it gave preliminary and final jury instructions: (1) it confused

supervisor and coworker harassment and the elements of each kind of claim; (2) it

misstated the law by instructing the jury to consider only acts which each plaintiff

was aware; and (3) it incorrectly instructed the jury to consider each employee’s

claim separately. After instructing the jury on the basic elements of a claim of a

                                         36
             Case: 12-11507     Date Filed: 06/17/2014    Page: 37 of 38


hostile work environment, the district court provided a full definition for both

supervisory liability and coworker liability that mirrored the 2005 Eleventh Circuit

Pattern Jury Instruction, which accurately reflects the difference between

supervisor and coworker liability. Hedgeman and Carter fail to identify the

inaccuracies in the definitions of supervisor and coworker liabilities provided by

the district court, and we find none. The district court also correctly instructed the

jury that an employee must be aware of the incidents of harassment that would

support the subjective and objective components for a claim of a hostile work

environment. And the instruction to consider each claim separately properly

informed the jury to evaluate each employee’s claim individually.

             3. Hedgeman and Carter Waived their Remaining Claims.

      In their brief, Hedgeman and Carter argue about the denial of their Batson

challenges and, in their notice of appeal, they represent that they are appealing the

jury verdicts and final judgments entered against them, but they have waived these

arguments. Hedgeman and Carter failed to submit the transcript of the jury

selection in a timely manner, so we cannot review their Batson challenges. “Under

the ‘absence equals affirmance rule,’ the burden is on the appellant to ensure the

record on appeal is complete, and where a failure to discharge that burden prevents

us from reviewing the district court’s decision we ordinarily will affirm the

                                          37
             Case: 12-11507      Date Filed: 06/17/2014    Page: 38 of 38


judgment.” Pensacola Motor Sales Inc. v. E. Shore Toyota, LLC, 684 F.3d 1211,

1224 (11th Cir. 2012) (internal quotation marks omitted). Hedgeman and Carter

also failed to address in their initial brief why the jury verdict and the denial of

their motion for judgment as a matter of law were clearly erroneous. Those issues

are now waived. See Mesa Air Grp., Inc. v. Delta Air Lines, Inc., 573 F.3d 1124,

1130 n.7 (11th Cir. 2009).

                                 IV. CONCLUSION

      We AFFIRM the summary judgments in favor of Austal and against Robert

Adams, Alvin Cunningham, Rahman Pratt, Carolyn Slay, Gloria Sullivan, and

Franklin Thomas. We VACATE the summary judgments in favor of Austal and

against Tesha Hollis, Nathaniel Reed, Jerome Pettibone, Ron Law, Nelson

Bumpers, Frederick Williams, and Larry Laffiette and REMAND for further

proceedings. We AFFIRM the judgments in favor of Austal and against Frederick

A. Carter and Sidney Hedgeman. We DENY as moot the motion filed by Austal to

supplement the record with the employees’ initial disclosures. And we DENY as

moot the motion filed by Austal to strike the employees’ expanded record excerpts.




                                           38
