(Photo by Rebecca Breyer)

A federal appeals panel has reinstated race discrimination claims for seven black shipyard workers who claimed they were subjected to racist graffiti and supervisors and coworkers calling them or other African-Americans the N-word, “boy” and “monkey.”

The U.S. Court of Appeals for the Eleventh Circuit ruled against 16 other plaintiffs, some who were appealing their losses at trial and others whose cases were tossed earlier in the process.

A key part of the panel’s ruling was its holding that an employee plaintiff cannot point to the abuse of coworkers to show that the plaintiff’s workplace was a hostile one—if the plaintiff was unaware of the experience around the time it occurred.

The case involves allegations of a racially hostile working environment at a shipyard in Mobile, Ala., owned by Austal, an Australian shipbuilding company. According to a June 17 Eleventh Circuit opinion by Judge William Pryor Jr., the record in the case contains “substantial evidence of serious racial misconduct” at the shipyard, although he noted Austal disputes much of the evidence.

Current and former Austal employees contend that for years there was vulgar, racist graffiti in the men’s restrooms at the shipyard, until, as Pryor put it, Austal “finally wised up and painted the walls black.” Graffiti allegedly included racist jokes involving the N-word and comments such as “KKK is getting bigger” and “white is right.”

There’s evidence that employees discovered eight nooses at Austal during the time the plaintiffs worked there. Several white employees wore or displayed Confederate flag paraphernalia, and several employes alleged that white supervisors and coworkers called them or another African-American employee “boy” or “monkey.”

In 2008, more than 20 African-American current and former employees sued Austal, complaining of racial discrimination. For 13 of the plaintiffs, U.S. District Judge Kristi DuBose granted Austal’s motion for summary judgment, finding that in those cases no reasonable jury could find that the harassing conduct was sufficiently frequent and severe to support a lawsuit.

Noting that not all of the employees shared the same supervisor, worked in the same department or were employed during the same time periods, the district judge ruled that an employee could not use evidence of racial misconduct to prove that his work environment was objectively hostile—a key element of a hostile working environment claim—if the employee had been unaware of that conduct.

Other plaintiffs’ claims went forward in three separate trials, with Austal ultimately prevailing on all claims. A jury deadlocked on the hostile working environment claims of three plaintiffs in the first trial, but when the matter was retried, a jury found for the company.

All of the plaintiffs appealed. The panel of Pryor, Eleventh Circuit Senior Judge Emmett Ripley Cox and visiting U.S. District Judge Lee Rosenthal of Texas upheld the verdicts for Austal and upheld six of 13 summary judgment rulings in Austal’s favor.

As the appeals were brought in two separate cases, the same panel ruled on the same day in two separate opinions, one published opinion by Pryor and a shorter, unpublished, unsigned opinion.

Pryor’s opinion said the district judge was correct to limit her consideration to incidents of racial harassment of which an individual plaintiff was aware in determining whether that plaintiff’s workplace was objectively hostile. He said other circuits—the Sixth, Seventh, Eighth, Ninth and Tenth Circuits—followed this approach.

“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’” wrote Pryor, quoting a 1999 Eleventh Circuit decision.

“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. … 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.”

The panel assessed individually the case of each plaintiff who lost at the summary judgment stage.

For example, the panel said the district judge should not have dismissed the claims of Tesha Hollis, who worked at Austal for three years.

As recounted by Pryor, Hollis 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 drawing of her appeared in the men’s restroom. She saw the drawing, which included a caption that read “y’all got a bad ass nigger bitch working over there … 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 once heard someone say over the work walkie-talkie system, “send some monkeys over here.” She saw a white employee kick a black employee and on a daily basis saw white employees on her crew wear clothing and accessories with the Confederate flag.

By contrast, the panel said the claims of Rahman Pratt did not raise a genuine issue of material fact such that his case should go to jury. Pryor wrote that Pratt worked for Austal for seven months, during which no white employee made a racially discriminatory comment directly toward him but he heard comments about African-Americans generally. Pratt once heard a white coworker, talking to other white coworkers, refer to African-Americans by the N-word and the word “monkey,” and he heard about comments from other coworkers, but, wrote Pryor, “the racist conversation that he overheard was isolated and not directly threatening or humiliating to him.” He saw several coworkers wear Confederate flag apparel, but, according to Pryor, “his exposure to the symbol was not humiliating or threatening.” Pratt complained about seeing racist graffiti in the bathroom, but Pryor noted that Austal regularly cleaned it and none of the drawings targeted Pratt specifically.

The panel also ruled against the plaintiffs who had been unsuccessful at trial, rejecting arguments over the trial judge’s evidentiary rulings, challenges to the defense using its peremptory strikes against prospective African-American jurors and other matters. Addressing the arguments of two plaintiffs who lost at trial, Pryor said the trial judge did not abuse her discretion by excluding evidence about incidents of which the two plaintiffs were unaware and that were unrelated to their supervisors.

Pryor said that although the Eleventh Circuit had in a 2008 case said such “me too” evidence could be used to show an employer is responsible for the harassment of the plaintiff, that case involved a small company, while Austal employs more than 2,000 workers across many departments and in different locations, such that the response could vary by department or supervisor.

Kevin Jent of Wiggins Childs Quinn & Pantazis in Birmingham argued the case for the plaintiffs. He could not be reached for comment.

Anne Laurie McClurkin of McDowell Knight Roedder & Sledge in Mobile argued the case for the defendants. Another lawyer at that firm who worked on the case, Thomas O’Hara, referred questions to Austal, which did not respond to a request for comment.

The cases are Adams v. Austal, No. 12-11507, and Adams v. Austal, No. 12-12182.