[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
___________________________ FILED
U.S. COURT OF APPEALS
No. 05-11213 ELEVENTH CIRCUIT
February 24, 2006
___________________________
THOMAS K. KAHN
CLERK
D.C. Docket No. 03-00219-CV-WDO-05
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant,
APRIL LEPERA,
Intervenor- Plaintiff-
Appellant,
versus
CAGLE’S, INC.,
Defendant-Intervenor-
Defendant-Appellee.
_____________________________
Appeals from the United States District Court
for the Middle District of Georgia
_____________________________
(February 24, 2006)
Before BLACK, HULL and FARRIS*, Circuit Judges.
*Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
PER CURIAM:
Plaintiffs Equal Employment Opportunity Commission and April Lepera
appeal the district court’s decision granting summary judgment to defendant
Cagle’s, Inc. on their Title VII sexual harassment and retaliation claims. We
review this summary judgment decision de novo. Allen v. Tyson Foods, Inc., 121
F.3d 642, 646 (11th Cir. 1997). We affirm.
If the allegations are true, Ms. Lepera’s supervisor’s conduct constituted
sexual harassment. His vulgar commentary and disturbing physical violations
were both severe and pervasive. See Johnson v. Booker T. Washington Broad.
Serv., Inc., 234 F.3d 501, 508-509 (11th Cir. 2000) (“When determining whether
harassment is objectively severe and pervasive, courts consider the frequency of
the conduct, the severity of the conduct, whether the conduct is physically
threatening or humiliating, or a mere offensive utterance, and whether the conduct
unreasonably interferes with the employee's job performance.” (internal quotations
and citation omitted)). All the more outrageous was that these acts were
perpetrated by the head of Cagle’s human resources department at its Perry,
Georgia plant.
Employer liability for a supervisor’s sexual harassment is a two-way street.
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See Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1302 (11th Cit. 2000)
(“workplace discrimination cannot be corrected without the cooperation of the
victims” (internal alteration and citation omitted)). In general, under the
Faragher/Ellerth defense an employer may be relieved of its vicarious liability if
(1) it disseminated an adequate anti-harassment policy and took reasonably prompt
action “designed to stop the harassment, correct its effects on the employee, and
ensure that the harassment does not recur,” and (2) the victimized employee failed
to report her harassment in compliance with the reporting policy. See Walton v.
Johnson & Johnson Servs., Inc., 347 F.3d 1272, 1286, 1288-89 (11th Cir. 2003)
(citing Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998)); Frederick
v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1313-14 (11th Cir. 2001). “[I]n some
cases, the proof will show that the employee’s non-compliance was reasonable
under the circumstances and, in these cases, the defendant cannot satisfy the
second element of the affirmative defense.” Frederick, 246 F.3d at 1314.
The record indicates that Cagle’s did have an adequate policy and, once
informed of the harassment, it immediately suspended Ms. Lepera’s supervisor
and forced him to permanently resign within days. Although two former
employees told her they believed they were terminated for reporting racial
harassment, and that caused her to fear retaliation if she made a report, it was Ms.
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Lepera’s burden to allege sufficient facts to justify consideration of her
allegations. She failed to do so. See Walton, 347 F.3d at 1290-91 (“. . . absent a
credible threat of retaliation . . . subjective fears of reprisal do not excuse [a]
failure to report . . . alleged harassment.” (internal citations omitted)). Cagle’s
swift response suggests that Ms. Lepera could have been spared much of the
trauma suffered at the hands of her supervisor had she followed the anti-
harassment policy. See id. at 1290.
Ms. Lepera was terminated sixteen days after making her sexual harassment
complaint. Retaliation claims are evaluated under the McDonnell Douglas burden
shifting framework. Brungart v. Bellsouth Telecomms., Inc., 231 F.3d 791, 798
(11th Cir. 2000). The close temporal proximity between Ms. Lepera’s complaint
and termination establishes a prima facie case of retaliation. See id.; Farley v.
Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999). Cagle’s asserts
that Ms. Lepera was fired for poor job performance, which was discovered during
an investigation of the Perry plant’s human resources department initiated as a
result of her harassment complaint. The record supports this non-retaliatory
justification for her termination.
AFFIRMED
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