o&~CiSHA~uf1

IN THE UNITED STATES DISTRICT COURT '

. " lPo.

FOR THE MIDDLE DISTRICT OF GEORGIA 03 Jill -2 A 9: 5e

MACON DIVISION

v_

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,
VS.
CAGLE'S, INC.,
Defendant.

5 ~O 3-tv- 02 1 9-2

JURY TRIAL

(~

DEMANDED

COMPLAINT This is an action under Title VII of the Civil Rights Act of 1964, as amended, and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices on the bases of sex (including but not limited to sexual harassment) and retaliation, and to provide appropriate relief to the charging party, Ms. April Lepera (hereinafter "Charging Party"), who was adversely affected by such practices.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331,1337,1343 and 1345. This action is authorized and instituted pursuant to Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) and (3) (Title VII), and Section 102 of the Civil Rights Act of 1991,42 U.S.C. § 1981a. 2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the Middle District of Georgia, Macon Division.

PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII and is expressly authorized to bring this action by Section 706(f)(1) and (3) of Title VII, 28 U.S.C. § 2000e-5(f)(l )and (3). 4. At all relevant times, Defendant Cagle's, Inc. (the "Defendant") has continuously been a corporation doing business in the State of Georgia and the city of Perry, Georgia, and has continuously had at least 15 employees. 5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce under Section 701 (b), (g) and (h) of Title VII, 42 U.S.C. § 2000e(b), (g) and (h).
STATEMENT OF CLAIMS 6. More than 30 days prior to the institution of this lawsuit, Charging Party filed their charges with the Commission alleging a violation of Title VII by Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. Since at least October of 2000, Defendant engaged in unlawful employment practices at its Perry, Georgia facility, in violation of Section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a), by subjecting Charging Party to
(a) sexual harassment; and (b) retaliation. 8. The effects of the practices complained of in paragraph 7 above have been to deprive Charging Party of equal employment opportunities and otherwise adversely affect her status as employee because of her sex and because she engaged in protected activity.
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9. The unlawful employment practices complained of in paragraph 7 above were intentional and were carried out with malice and/or reckless indifference to the federally protected rights of Charging Party.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant, its officers, successors, assigns and all persons in active concert or participation with it, from engaging in sexual harassment against women and any other employment practice which discriminates on the basis of sex and involvement in protected conduct. B. Order Defendant to institute and carry out policies, practices, and programs which provide equal employment opportunities for women and which eradicate the effects of its past and present unlawful employment practices. C. Order Defendant to make whole Charging Party, who was adversely affected by Defendant's discriminatory conduct, by providing appropriate back pay with prejudgment interest, in amount to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to front pay and/or rightful-place reinstatement of Charging Party. D. Order Defendant to make whole Charging Party by providing compensation for past and future pecuniary loss resulting from the unlawful employment practices described above, including job search expenses, in amount to be determined at trial. E. Order Defendant to make whole Charging Party by providing compensation for non-pecuniary loss resulting from the unlawful employment practices described above, including emotional pain and suffering, anxiety, stress, depression, and humiliation, in amount to be determined at trial.
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F. Order Defendant to pay to Charging Party punitive damages for Defendant's malicious and reckless conduct described above, in amount to be determined at trial.
G. Grant such further relief as the Court deems necessary and proper. H. Award the Commission its costs in this action.
JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its Complaint.
MARCUS G. KEEGAN Trial Attorney Georgia Bar No.: 410424 U. S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION ATLANTA DISTRICT OFFICE 100 Alabama St., SW, Suite 4R30 Atlanta, Georgia 30303 Telephone: (404) 562-6818 Facsimile: (404) 562-6905
4

 
 II

'FILED U S. C~S~RICT COURT IN THE UNITED STATES DISTRICT COURT FORffHE ~" ~fJ!;':C;iA

MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

03 OCT 14 fH 4: 33

EQUAL EMPLOYMENT

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···--hEPUi Y CLERK

OPPORTUNITY COMMISSION,

Plaintiff,

Civil Action No. 5 :03-CV-0219-2(WDO)

APRIL LEPERA,

Plaintiff/Intervenor, vs. CAGLE'S, INC.,

Defendant. COMPLAINT OF INTERVENOR
NOW COMES APRIL LEPERA, Plaintiff/Intervenor, and respectfully shows the Court the following:
Nature of the Case 1.
This is an action under Title VII of the Civil Rights Act of 1964,42 U.S.C. §2000e, et seq., (as amended) to redress Defendant's discrimination against Plaintiff/Intervenor on the basis of her sex, including sexual harassment and retaliation.
Jurisdiction and Venue
2.
This Court has jurisdiction of this action under 42 U.S.c. §2000e-5(f)(I) and (3) and 28 U.S.C. §1331, 1337 and 1343. Venue is proper in this District because Defendant's unlawful

II
employment practices as alleged in this Complaint were committed within the jurisdiction of the United States District Court for the Middle District of Georgia, Macon, Division.
Parties 3.
Plaintiff, the Equal Employment Opportunity Commission (EEOC) is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII and is authorized to bring this action by 42 U.S.C. § 2000e-5(f)(I) and (3).
4. Plaintiff/Intervenor April Lepera is an adult female, a citizen of the United States and a resident ofWamer Robins, Georgia.
5. Defendant Cagle's, Inc. (Defendant) is a for-profit corporation organized under the laws of the State of Georgia, and at all relevant times in this Complaint has been a corporation doing business in Houston County, Georgia with at least 15 employees. Defendant is subject to the jurisdiction of this Court.
Facts 6.
On July 17, 2001, April Lepera filed Charge of Discrimination Number 110A13979 with the Equal Employment Opportunity Commission alleging that, while employed by Defendant, she was sexually harassed by her supervisor, that she reported that sexual harassment, and that Defendant terminated her employment in retaliation for participating in protected activity in violation of Title VII of the Civil Rights Act of 1964, as amended.
-2CHA.RLES E. cox, JR" ATTORNEY AT LAW, 830 MULBERRY STREET, SUITE 203, P.O. Box 67, MACON, GEORGIA 31 202-0067
TELEPHONE 478-744-2440 FACSIMILE 478-744-2454

, 1
7. On April 16, 2002, the Equal Employment Opportunity Commission issued a ,I detennination in connection with Charge of Discrimination Number 110A13979. Among other things, the EEOC detennined that "Based on the analysis of the evidence, it is reasonable to believe that Charging Party was subjected to sexual harassment and was demoted and discharged in retaliation for having opposed unlawful employment practices in violation of Title VII."
8. Plaintiff/Intervenor has fulfilled all conditions precedent to this suit.
9. Since at least October of 2000, Defendant engaged in unlawful employment practices at its facility in Houston County, in violation of 42 U.S.C. §§ 2000e-2(a) and 2000e-3(a) by SUbjecting Plaintiff/Intervenor to sexual harassment and retaliation.
10. On or about April 2, 2001, Plaintiff/Intervenor complained to the General Manager at Defendant's Houston County facility that she had been subjected to sexual harassment by her supervisor, the Human Resources Manager, from October of2000.
11. Defendant tenninated Plaintiff/Intervenor's employment sixteen (16) days after she complained of the sexual harassment by her supervisor.
12. Plaintiff/Intervenor engaged in activity protected by Title VII of the Civil Rights Act of 1964 when she complained about the sexual harassment by her supervisor, and her protected
-3CHARLES E. Cox, JR., ATTORNEY AT LAW, 830 MULBERRY STREET, SUITE 203, P.O. Box 67, MACON, GEORGIA 31202-0067
TELEPHONE 478-744-2440 FACSIMILE 478-744-2454

1 ,
conduct was a motivating factor in Defendant's decision to terminate her employment. 13.
By its conduct, Defendant has denied Plaintiff/Intervenor equal employment opportunities and has adversely affected the terms and conditions of her employment because of her sex and because she has engaged in activity protected under Title VII of the Civil Rights Act of 1964, as amended.
14. Defendant has acted with actual malice or reckless indifference to Plaintiff/Intervenor's federally protected rights, and Plaintiff/Intervenor is entitled to punitive damages.
WHEREFORE, Plaintiff/Intervenor prays that this Court grant her the following relief: (a) Award Plaintiff/Intervenor appropriate back pay with prejudgment interest, in an amount to be determined at trial; (b) Award Plaintiff/Intervenor front pay and/or reinstatement, and any other affirmative relief necessary to eradicate the effects of Defendant's unlawful employment practices; (c) Award Plaintiff/Intervenor compensation for past and future pecuniary loss resulting from Defendant's unlawful conduct; (d) Award Plaintiff/Intervenor compensation for non-pecuniary loss resulting from Defendant's unlawful conduct, including emotional pain and suffering, anxiety, stress, depression, and humiliation, in an amount to be determined by the jury at trial;
·4· CHARL.ES E. cox, JR., ATTORNEY AT LAW, 830 MULBERRY STREET, SUITE 203, P.O. Box 67, MACON, GEORGIA 31202-0067
TELEPHONE 476-744-2440 FACSIMILE 478-744-2454

I'

(e) Award Plaintiff/Intervenor punitive damages for Defendant's malicious and

reckless conduct, in an amount to be determined by the jury at trial;

(f) Award Plaintiff/Intervenor her attorney's fees and costs; and

, '

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(g) Award Plaintiff/Intervenor such other and further relief as the Court may deem

appropriate.

PLAINTIFF DEMANDS TRIAL BY mRY OF ALL ISSUES SO TRIABLE.

~ Respectfully submitted, thisl!L!1 day of

,2003.

CHARLES E. Cox, JR.
ATTORNEY AT LAW 830 MULBERRY STREET, SUITE 203 POST OFFICE Box 67 MACON, GEORGIA 3' 202-0067
(478) 744-2440

Attorney at Law Attorney for Plaintiff/Intervenor

-5CHARL.ES E. cox, JR., ATTORNEY AT LAW, 830 MULBERRY STREET, SUITE 203, P.O. Box 67, MACON, GEORGIA 31 202-0067
TELEPHONE 478-744-2440 FACSIMILE 478-744-2454

II
CERTIFICATE OF SERVICE This is to certify that I have this day served a true and correct copy of the foregoing COMPLAINT OF Plaintiff/Intervenor upon the following:
S. Robert Royal Regional Attorney Marcus G. Keegan Trial Attorney Equal Employment Opportunity Commission 100 Alabama Street, SW, Suite 4R30 Atlanta, Georgia 30303 (404) 562-6818 Attorneys for Plaintiff EEOC Martin H. Steckel, Esq. Wimberly, Lawson, Steckel, Nelson & Schneider, P.C. Suite 400, Lenox Towers 3400 Peachtree Road, N.E. Atlanta, Georgia 30326-1107 (404) 365-0900 Attorneys for Defendant Cagle's, Inc. by placing a copy of the same in the United States Mail, First Class, in a properly addressed envelope with sufficient postage affixed thereto to ensure delivery.
This ILf.tlaay of C~ ,2003.
Char es E. Cox, Jr.
-6-
CHARL.ES E. Cox, JR., ATTORNEY AT LAW, 830 MULBERRY STREET, SUITE 203, P.O. Box 67, MACON. GEORGIA 31 202-0067 TELEPHONE 478-744-2440 FACSIMILE 478-744-2454

 
 IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGlA r.' '...., .....{ ; L MACON DIVISION

EQUAL EMPLOYMENT

. ' .,i .....

OPPORTUNITY COMMISSION,

Plaintiff

APRIL LEPERA,

S:03-CV-219 (WOO)

Plaintiff-Intervenor

v.

CAGLE'S, INC.,

Defendant

ORDER

Plaintiff Equal Employment Opportunity Commission (hereinafter referred to as the "EEOC") filed this case against Defendant Cagle's alleging discrimination against Cagle's former employee April Lepera. Ms. Lepera thereafter joined this suit as the Plaintiff-Intervenor. The plaintiffs al/ege sexual harassment and retaliation for filing a complaint about the alleged sexual harassment. Before the Court is the defendant's motion for summary judgment on all claims. After a thorough review of the record, the Court finds that a hearing is unnecessary and enters the following order. 1

1The plaintiffs moved to strike several affidavits filed by the defendant in support of its motion for summary judgment. The affidavits were given by individuals who were employees working in the same department as Plaintiff Lepera during the time in question. The plaintiffs claim that the Court should not consider the affidavits because the same were not disclosed to the plaintiffs during discovery. However, the defendant did notify the plaintiffs during discovery that these individuals would be called upon to present evidence and the plaintiffs have had an
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Material, Undisputed Facts2

In May of 2000, April Lepera was hired as a supervisor in the Human

Resources department at the Cagle's plant in Perry, Georgia. She interviewed

with and was hired by David Moore, the plant's Human Resources manager. The

Plant Manager was Alan Habegger. During this time, the Perry Plant was a new

facility in "start-up" mode. Plaintiff Lepera and Moore were among the first

managerial employees hired before production started in order to put the

appropriate company policies and systems in place. Prior to working at Cagle's,

Lepera had held at least three human resources related positions, including one

as a Human Resource Supervisor. Upon hiring Lepera, Moore told her that she

would be helping with hiring production workers for the new facility, organizing

orientation sessions and social events, learning the Kronos timekeeping system

and administering the company's attendance policies and health insurance plan.

During Lepera's tenure at Cagle's, she supervised five human resource

clerks. As second-in-command in her department, part of Lepera's job was to

opportunity to dispute any evidence presented in the affidavits. The plaintiffs' motion to strike the affidavits is DENIED. As is customary, the Court carefully reviewed the entire record, construing all facts in the plaintiffs' favor, to arrive at the findings in this opinion.
2The following facts are taken from the defendant's statement of material, undisputed facts and construed in the plaintiffs' favor, taking into consideration the plaintiffs' responses to the defendant's statement. However, some of the plaintiffs' responses consisted of no more than a notation that the defendant's statement of a particular fact was "disputed." Local Rule 56 provides that "[a]1I material facts contained in the moving party's statement which are not specifically controverted by the respondent in respondent's statement shall be deemed to have been admitted, unless otherwise inappropriate." Federal Rule of Civil Procedure 56(e) provides that "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading. but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." Therefore, the facts considered in this opinion are the material, undisputed facts that were not specifically controverted by the plaintiffs and that are supported by the record.
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communicate instructions from Moore to the clerks and generally see thatthe work of the department was completed. From the beginning, the Human Resources department did not run smoothly because there were problems with the timekeeping system and frequent errors in the documentation of attendance and the filing of insurance applications. Lepera contends that she reported these problems to Ron Faircloth, Cagle's Chief Financial Officer, and others but that, according to the plaintiff, the problems centered around Moore being a "micro manager" who only wanted things done his way and not necessarily the right way. Another problem in the department was the use, or non use, of 1-9 forms that documented whether an individual was permitted to work in the United States. Since this type of plant generally employs a large percentage of migrant workers, this form and its correct usage were a particularly important part of Lepera's job. However, she did not understand the 1-9 form, what it was for or how to use the form. In fact, on one occasion, nearly 100 illegal immigrants were employed at the Perry Plant, partly because the plaintiff and others in the department failed to properly document them and their illegal status was ignored. Further, the plaintiff admittedly had no knowledge of federal employment laws, although she was in charge of distributing the Cagle's employee handbook in which those laws are explained to the employees and had read the handbook herself.
Cagle's has a policy prohibiting sexual harassment and explaining to the employees how complaints about such matters may be pursued. The policy provides that
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If you believe you have been subjected to unlawful sexual harassment, you should, without fear of reprisal report that immediately to your department manager, department supervisor or the human resource manager. All complaints will be investigated in a prompt and confidential manner. If it is determined that violation ofthe sexual harassment policy has occurred, the company will take appropriate action to correct this situation and prevent further violations. Such action will include discipline up to and including termination.
On April 2, 2001, Lepera, for the first time, complained to Habegger that
Moore had subjected her to sexual harassment. She stated that, beginning in
October of 2000, Moore had pulled or tried to pull her across his lap a couple of
times, had put his hands on her shoulders, had, in the course of admiring a ring
on Lepera's hand, kissed or licked the top of her hand, had licked a candy bar and
then given her the candy bar, had on one occasion stated something along the
lines of how he could "break" or "snap" her "like a toothpick,"3 had once smacked
her "behind" with a file folder, would tell jokes and stories with sexual content and
that he once led a conversation among several of the employees in the
department about what kind of undergarments people in the office were wearing
at the time. Although Lepera admitted that it was not uncommon for the women
in the department to talk about their personal lives, including their sexual activity,
she contends that she would tell Moore when she was offended by his behavior,
jokes or stories. When Lepera met with Habegger about the alleged sexual
harassment, Habegger called in his secretary to take notes of the meeting.
3Because no context was given for this statement, it impossible to determine whether it was made in relation to a sexual remark by Moore to Lepera or as part of one of his inappropriate jokes or stories. The remark will therefore be taken into consideration as part of the overall "totality of the circumstances" in relation to the other facts presented.
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Habegger informed Lepera that he would speak to Moore and begin an investigation immediately.
Later that day, Habegger met with Moore to discuss Lepera's complaint. Habegger informed Moore of the charges against him, gave him a letter outlining the substance of the complaint and placed him on administrative leave pending the findings of the investigation. Habegger personally conducted the investigation and interviewed the clerks in the Human Resources department. During those interviews, Habegger learned that none of the women whom the plaintiff told Habegger had witnessed Moore's alleged harassment could confirm any of the incidents about which Lepera had complained. However, during the interviews, Habegger did learn, and for some things for the first time, about the numerous problems in the Human Resources department that needed further investigation. On April 6, 2001, Moore was placed on probation until June 1. On or about April 9, 2001, Habegger gave Moore a memo in which Habegger stated that "we need to make a management change so as to place a new emphasis on the Human Resources Department," effective immediately. Moore was offered the choices of resigning or being terminated. Moore chose to resign. On or about April 10,2001, Habegger informed Plaintiff Lepera of the results of his investigation and that Moore had resigned.
During the investigation, Habegger learned that Moore and Lepera had not been running their department according to company policy. For instance, individuals who were hired for specific tasks were not working on those tasks. There were no defined roles for anyone in the department. The timekeeping
5

system was either not working correctly or being used incorrectly. Tardies, vacations and overtime were not being recorded correctly. Illegal aliens were working at the plant, thereby placing the corporation in legal jeopardy, because Lepera was processing their employment applications without verifying their legal or illegal status.4 Because of these problems, Habegger consulted with Cagle's Chief Operating Officer, Jerry Gattis, about how to work toward getting the Perry Plant's Human Resources department on the right track. Habegger also informed Gattis of the recent sexual harassment allegations against Moore and that Moore had resigned. Gattis asked O'Neal Shaw, a Human Resources manager from another plant in Pine Mountain, Georgia with more than 12 years' experience with Cagle's, to work at the Perry Plant temporarily to investigate the problems reported by Habegger and determine how to make the department run more smoothly and efficiently. Shaw was appointed the temporary Acting Manager of the Human Resources Department. He was directed to conduct a thorough investigation of the department's operations and to evaluate the skill and ability of department personnel in order to improve employee performance in the department. Shaw reported to the Perry Plant the next day.
Upon his arrival in Perry, Shaw met with Habegger then met the Human Resources staff, first as a group then individually. He explained that he would be taking charge on an interim basis and that until a permanent replacement could
4There is some dispute regarding when Habegger learned of specific problems, either during his investigation or during a later investigation. Regardless, this is not a dispute of a "material" fact because when Habegger learned of which problems is immaterial. The material fact is that at some point Habegger learned about all the problems and took the actions described below.
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be hired all staff in the department was to report directly to him. Shaw had already learned about the sexual harassment claim by Lepera against Moore from speaking to corporate counsel before he arrived in Perry. Shaw also quickly learned that the Human Resources department was in deplorable shape. 5 Through his investigation of the department, Shaw learned that the clerks were not performing the tasks for which they were hired and that as a result there was no accountability or follow-through on those responsibilities. Shaw learned that Plaintiff Lepera had been responsible for the attendance system where employees received points for absences and tardies and were supposed to be warned when they approached the limit beyond which they would be terminated. Shaw discovered that Lepera had not properly implemented that system and had terminated many employees summarily, without warnings, and let others continue to work even when they had exceeded their allotted attendance deficiency poi'nts. Shaw learned that employees were not being enrolled in the company insurance plan when they became eligible. New-Hire orientation sessions had not been properly conducted. Shaw also discovered that Plaintiff Lepera had very poor relationships with the clerks in the department. Shaw learned that the clerks did not like working for Lepera, that some had threatened to quit because Lepera interacted with them in a divisive or otherwise unprofessional manner and that some of the employees "hated" her. The clerks reported that Lepera was "high-
5There is some dispute over what Shaw learned and when and whether he attributed the deficiencies in the department to Moore, Lepera or both, Again, this is not a dispute of a material fact because (1) Moore had already resigned and his performance or lack thereof was no longer relevant to Shaw's investigation and (2) with Lepera as the sale remaining supervisory employee she was held responsible for the deficiencies that were attributable to her.
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handed" and confrontational with production employees. At some point during the investigation, Shaw relieved Plaintiff Lepera of her supervisory duties, although she maintained her salary, retained her office and continued to have several of her old responsibilities such as being the Human Resources employee liaison and having responsibility for implementing and enforcing the attendance poliCies.
Rather than cooperate with the new, temporary leadership, Lepera retreated into her office and ceased to perform the responsibilities of her job and to interact with the other employees in general. She stopped meeting with employees, told the clerks she had been demoted and took a box of personal items home because, according to Lepera, Shaw had informed her that he may move her into a different office and she felt that if she moved into a smaller office she would not have room for all of her personal belongings. There is some dispute over an incident where Shaw assigned Lepera the duty of maintaining the bulletin boards where information was on display for all employees, such as federal and state employment laws and other important information. Lepera viewed the assignment as a demotion but Shaw testified that he considered the boards so important, because of the information provided therein, that he had taken personal responsibility for the boards at his home plant.
Habegger and Shaw communicated regularly about how the reorganization in the Human Resources department was proceeding. Shaw reported that he had experienced difficulties with Lepera regarding his instructions to carry out the bulletin board assignment, that Lepera was not communicating with other employees and that she had packed all of her personal belongings in a box as if
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she was preparing to quit. During this time, three of the clerks from that

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department met with Habegger and stated that they could no longer work with

Lepera because of her domineering and unprofessional approach to leadership.

At some point during this process, Shaw determined that Lepera should be

terminated based on her inability to effectively and properly lead the department,

because she had completely stopped performing her responsibilities after her

perceived demotion and had in several other respects failed to otherwise fulfill her

responsibilities. Shaw communicated this recommendation to Habegger. Based

on Habegger's meeting with the clerks, supported by what Shaw had told him

about Lepera's poor attitude and track record, and Shaw's recommendation,

Habegger agreed that Lepera should be terminated.

After she was terminated, Lepera filed sexual harassment charges with the

EEOC. The EEOC then conducted an investigation and determined that there

may be reason to believe that Lepera experienced sexual harassment and/or

retaliation for complaining about the alleged harassment. Thereafter, the EEOC

and Lepera filed this case against Cagle's alleging a hostile work environment

sexual harassment claim and retaliation regarding her termination.

Summary Judgment Standard

Summary Judgment is appropriate when the pleadings, depositions, and

affidavits submitted by the parties show no genuine issue of material fact exists

and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).

The Supreme Court has explained that the moving party's burden may be
I
discharged "by 'showing' - that is, pointing out to the district court - that there is

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an absence of evidence to support the nonmoving party's case." Celotex Corp.

v. Catrett, 477 U.S. 317, 325 (1986). Summary judgment is appropriate against

A party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

1.d..:. at 322-23. "By its very terms, this standard provides that the mere existence

of some alleged factual dispute between the parties will not defeat an otherwise

properly supported motion for summary judgment; the requirement is that there be

no genuine issue of material fact." Anderson v. Liberty Lobby. Inc., 477 U.S. 242,

248 (1986).

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[f]he non-moving party must put forth more than a "mere 'scintilla'" of evidence; "there must be enough of a showing that the jury could

I

reasonably find for the party." Walker v. Darby, 911 F.2d 1573,

1577 (11 th Cir. 1990). "[T]here is no issue for trial unless there is

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sufficient evidence favoring the non-moving party for a jury to return

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a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted.

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Nyasuma v. Donley, 843 F. Supp. 1456, 1458 (M.D. Ga. 1994).

The plaintiffs correctly point out that, in the context of employment

discrimination claims, the Eleventh Circuit has found that "nebulous questions of

motivation and intent often make summary judgment inappropriate for disposition"

of such claims. Grigsby v. Reynolds Metals Co., 821 F.2d 590, 595 (11th Cir.

1987). That case also held, however, that the inference of intentional

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discrimination raised by a plaintiff's prima facie case may be stronger or weaker,

depending upon the facts of the particular case. Id. Nonetheless, this Circuit has

found that "[s]ummary judgments for defendants are not rare in employment

I

discrimination cases." Earleyv. Champion Int'I Corp., 907 F.2d 1077, 1081 (11th

I

Cir. 1990). A plaintiff must "present concrete evidence in the form of specific facts .

. . . Mere conclusory allegations and assertions will not suffice." Id.

Sexual Harassment Claim

To establish a sexual harassment claim under Title VII, a plaintiff must

show (1) that she belongs to a protected group; (2) that she has been subjected

to unwelcome harassment; (3) that the harassment must have been based on a

protected characteristic of the employee, such as the employee's sex; (4) that the

harassment was sufficiently severe or pervasive to alter the terms and conditions

of employment and create a discriminatorily abusive working environment; and (5)
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that the employer is responsible for such environment under either a theory of

vicarious or of direct liability." Walton v. Johnson & Johnson Services, Inc., 347

F.3d 1272, 1279-80 (11th Cir. 2003) (citation omitted).

"An adverse employment action is an ultimate employment decision, such

as discharge or failure to hire, or other conduct that alters the employee's

compensation, terms, conditions, or privileges of employment, deprives him or her

of employment opportunities, or adversely affects his or her status as an

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employee." Bass, 256 F.3d 1095, 1118 (11th Cir. 2001) (citations omitted).

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Employer criticism, like employer praise, is an ordinary and

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appropriate feature of the workplace. Expanding the scope of Title

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VII to permit discrimination lawsuits predicated only on unwelcome

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day-to-day critiques and assertedly unjustified negative evaluations would threaten the flow of communication between employees and supervisors and limit an employer's ability to maintain and improve job performance. Federal courts ought not be put in the position of monitoring and second-guessing the feedback that an employer gives, and should be encouraged to give, an employee. Simply put, the loss of prestige or self-esteem felt by an employee who receives what he believes to be unwarranted job criticism or performance review will rarely - without more - establish the adverse action necessary to pursue a claim under Title VII's anti-discrimination clause.

Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1242 (11 th Cir. 2001). "Work

assignment claims strike at the very heart of an employer's business judgment and

expertise because they challenge an employer's ability to allocate its assets in

response to shifting and competing market priorities." kL. at 1244.

In the case at bar, Cagle's concedes, for the purposes of its summary

judgment motion, that Plaintiff Lepera satisfied the first three elements of her

prima facie case - that she is a woman who was subjected to unwelcome

harassment that was based on her sex. However, Cagle's contends that Lepera

fails to satisfy the last two criteria. Cagle's contends that Lepera failed to show

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that the harassment was sufficiently severe and pervasive to alter her work

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environment and failed to show that Cagle's should be held either directly or

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vicariously liable for the harassment.

I Six months after the alleged harassment commenced, Lepera complained

to Hebegger of a few instances of unwelcome contact with Moore. However,

according to the defendant, Habegger's investigation did not uncover any evidence

that substantiated the specific claims made by Lepera. Specifically, the clerks that

Lepera claimed witnessed the alleged harassment denied having witnessed what

12

Lepera alleged and stated that Lepera initiated the contact and allegedly offensive jokes and stories. Regardless, considering these contentions in the light most favorable to the plaintiffs, the facts alleged by the plaintiffs simply do not rise to the level of "severe and pervasive" so as to alter her work environment as required by circuit precedent.
Factors to consider in the determination of whether harassment objectively altered an employee's terms or conditions of employment are: "(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 v. Borden, Inc., 195 F.3d 1238, 1246 (11 th Cir. 1999) (citations omitted). "The courts should 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 plaintiffs employment and create a hostile or abusive working
environment." .!Q. (citations omitted). Construing the evidence in the light most
favorable to Mendoza, the court found that she presented evidence of four categories of harassing conduct: (1) one instance in which [the alleged harasser] said to Mendoza 'I'm getting fired up;' (2) one occasion in which [he] rubbed his hip against Mendoza's hip while touching her shoulder and smiling; (3) two instances in which [he] made a sniffing sound while looking at Mendoza's grOin area and one instance of sniffing without looking at her groin; and (4) [his] 'constant' following
and staring at Mendoza in a 'very obvious fashion.'" .!Q. at 1247. The court held
13
II

that the conduct alleged by the plaintiff fell "well short of the level of either severe or pervasive conduct sufficient to alter her terms or conditions of employment.
In Gupta v. Fla. Bd. of Regents, the court noted that we "examine the statements and conduct complained of collectively to determine whethertheywere sufficiently pervasive or severe to constitute sexual harassment." Gupta v. Florida Bd. of Regents, 212 F.3d 571, 583 (11th Cir. 2000) (citing Mendoza, 195 F.3d at 1242). The "statements and conduct must be of a sexual or gender-related nature - 'sexual advances, requests for sexual favors, or conduct of a sexual nature, before they are considered in determining whether the severe or pervasive requirement is met. Innocuous statements or conduct, or boorish ones that do not relate to the sex of the actor or of the offended party (the plaintiff), are, not counted. Title VII, as it has been aptly observed, is not a 'general civility code.'"
ki. (citations omitted). With this in mind, the court found that the following conduct
did not constitute sexual harassment: being told to steer clear of certain faculty members because they were evil and racist; helping the plaintiff find a place to live and to find inexpensive furniture; telling the plaintiff to come and see him if there was anything he could do for her because "[m]ere solicitude, even if repetitive, is not sexually harassing behavior;" suggesting lunch at Hooters; being told on one occasion in a six-month time period, "You are looking very beautiful;" frequently calling the plaintiff at home and making innocuous inquiries that, although annoying or inappropriate, did not equal severe or pervasive sexual harassment; pulling down his zipper and tucking his shirt in; staring at her twice, touching her
ring and bracelet once, and repeatedly asking her to lunch. ki. at 583-585. The
14

11

II

I!

I

court held that of "all the conduct about which [the plaintiff complained], the most

serious is [the alleged harasser] placing his hand on [the plaintiff's] knee once, and

his touching the hem of her dress once. He should not have done either of those

things. But those were only two incidents in a period of six or seven months during

which they were interacting (out of an even longer period during which the two

worked for the University). Each incident was only momentary, and neither was

coupled with any verbal suggestions or advances." kL. at 585.

In the case at bar, the plaintiffs failed to establish that Moore's alleged

harassment was sufficiently severe or pervasive so as to alter the conditions of

Lepera's employment. Although Lepera pOinted out several incidents that

occurred over a period of five or six months, this was hardly a "continuous barrage

of sexual harassment." Johnson v. BookerT. Washington Broadcasting, 234 F.3d

501, 509 (11th Cir. 2000) (citation omitted). Granted, Moore's behavior was

boorish and inappropriate but courts do not get involved in circumstances of

inappropriate conduct only conduct that results in discrimination. The discussion

next turns to whether the Court should hold Cagle's liable for Moore's conduct.

"In Ellerth and Faragher, the Supreme Court indicated that courts should

no longer use the labels 'quid pro quo' and 'hostile environment' to analyze

whether an employer should be held liable on an employee's Title VII claim

concerning a supervisor's sex-based harassment." Walton, 347 at 1280 (citing

Burlington Industries. Inc. v. Ellerth, 524 U.S. 742, 753, 765, 118 S. Ct. 2257, 141

L.Ed.2d 633; Faragherv. City of Boca Raton, 524 U.S. 775,807,118 S. Ct. 2275,

141 L.Ed.2d 662 (1998)). "Instead, when analyzing whether an employer should

15

II

be held liable for a supervisor's harassment, courts should separate these cases

into two groups: (1) harassment which cUlminates in a 'tangible employment

action,' such as discharge, demotion or undesirable reassignment, and (2)

harassment in which no adverse 'tangible employment action' is taken but which

is sufficient to constructively alter an employee's working conditions." 1!t. (citations

omitted).

In Walton, the court found there was absolutely no evidence in the record

that the plaintiff was discharged (as opposed to being harassed) because of her

sex. Rather, the undisputed evidence showed that the plaintiff was discharged

because she elected to take disability rather than return to work. 1!t. at 1281

(allegations of sexual harassment included claims of unwelcome sexual advances,

including multiple allegations of rape). The plaintiff claimed that, because.the

disability resulted from the harassment of one of her supervisors, there was a

causal link between the harassment and the discharge. The court held that "the

question we must concern ourselves with, however, is whether [the defendant],

when it terminated [the plaintiff]. took her gender into account. And there is no

evidence that [the defendant], or any of the employees acting on its behalf,

considered [the plaintiffs] gender when the company terminated her." 1!t.at 1281-

82. The plaintiff "was terminated because she failed to return to work after her

short-term disability benefits expired in order to preserve her eligibility for long-term

II

disability benefits." The court of appeals upheld the district court's summary

I

judgment in the defendant's favor.

16

I
I
I

When a plaintiff fails to show she suffered an adverse employment action related to the alleged sexual harassment, the employer is entitled to the so-called Ellerth-Faragher defense. That is, "(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Walton, 347 at 1286.
In this case, Shaw recommended to Hebegger that Lepera be terminated based on her inability to perform the job she was hired to perform. Therefore, this case presents a somewhat unique factual scenario in that the alleged harasser, Moore, did not terminate the plaintiff. Rather, Moore was terminated within days of Lepera's complaint to Hebegger. Hebegger, the next in command, was not even the one who made the initial decision to terminate Lepera. Hebegger accepted Shaw's recommendation to terminate the plaintiff after Shaw reported that Lepera had failed in nearly every aspect of the job for which she was hired. That is not to say that an employer may always escape liability by bringing in a third party to terminate someone who files a claim for sexual harassment. Rather, on the facts of this case, there is simply no evidence that Lepera was fired because of her sex. She was terminated after Shaw determined that she had not been adequately performing her job as a Human Resources supervisor.
Likewise, Lepera's claim that she was demoted because of her sex has no merit. Neither Moore nor Hebegger made the decision to temporarily remove Lepera as a supervisor. Shaw made the decision to temporarily take over al/
17

supervisory duties while he was investigating the operations of the department based on (1) the fact that Moore, the department manager, had just been terminated and (2) Shaw wanted everyone in the office reporting directly to him until he could redistribute tasks to the individuals who were supposed to be performing them. During that time period, Lepera retained her official title, her salary, her office and continued to have several of her old responsibilities such as being the employee liaison and having responsibility for the attendance system. Again, there is simply no evidence that Shaw "demoted" Lepera based on her sex.
Finally, one of Lepera's allegations is that she was terminated prior to receiving any counseling regarding her allegedly poor performance or a "progressive discipline" plan as used with other employees. The defendant testified that the progressive discipline plan is in place for non-management, nonsalaried employees. Indeed, after Lepera filed her sexual harassment complaint with Hebegger, Moore did not receive a progressive discipline plan. Rather, he was terminated, or allowed to resign, before the investigation concluded. The fact that Moore did not go through "progressive discipline" shows that, when circumstances or poor performance reach a certain level, Cagle's chooses to treat its managers differently and impose immediate diSCipline. Therefore, Lepera may not base her claim on the fact that she was not allowed to participate in a progressive discipline plan.
Based on the foregoing, Cagle's is entitled to the Ellerth-Faragher defense. First, none of the "adverse employment actions" can be attributed to the alleged sexual harassment. Second, Cagle's exercised reasonable care to prevent and
18

promptly correct any sexually harassing behavior. As soon as Lepera complained

to Hebegger, Moore was placed on leave and was terminated within a few days.

Prior to that, Lepera unreasonably failed to take advantage of the preventive and

corrective opportunities provided by Cagle's. Lepera allowed the alleged sexual

harassment to continue for at least five or six months without a complaint to

anyone. Although Moore, the alleged harasser, was at the time her direct

supervisor, Lepera could have gone to Hebegger at any time and reported the

harassment. Lepera admitted she knew she could make an appointment with him

when she needed to speak with him and that she had read the employee manual

outlining the steps necessary to report sexual harassment. Further, she clearly

had a relationship with the other supervisors such that she could report

wrongdoing to them because she had in the past reported other concerns to

Cagle's Chief Financial Officer. Finally, the harassment did not constructively alter

Lepera's working conditions. Defendant Cagle's Motion for Summary Judgment

II

on the Sexual Harassment claim is GRANTED.6

I

Retaliation Claim

I

To establish a prima facie case of retaliation, the plaintiffs must show that:

(1) Lepera engaged in a protected activity; (2)she suffered an adverse

employment action; and (3) there was a causal link between her protected activity

and the adverse employment action. Bass, 256 F.3d at 1117 (citations omitted).

6Prior to Moore's termination, he had hired Randy Cisne to be an additional supervisor in the Human Resources department on the third shift. Although Cisne had been hired prior to Moore's resignation, he did not actually begin working at the plant until shortly after Shaw arrived. Therefore, to the extent the plaintiffs attempted to assert the claim, Lepera's "adverse employment action" cannot be based Moore's hiring Cisne as her "replacement."
19

!

"To establish a causal connection, a plaintiff must show that the decisionmakers

I I

were aware of the protected conduct, and that the protected activity and the

I

adverse action were not wholly unrelated." kl at 1119 (citations omitted). "Close

temporal proximity between the protected activity and the adverse action may be
sufficient to show that the two were not wholly unrelated." kl (citations omitted).

Lepera engaged in a protected activity when she complained to Hebegger.

However, even assuming she suffered an adverse employment action, for

purposes of analyzing the retaliation claim, when she was eventually terminated,

there was no causal link between her complaining to Hebegger and her

termination. Although the decisionmakers (Shaw and Hebegger) were aware of

her claim, the evidence shows the claim and the termination were wholly

unrelated. The close temporal proximity between Lepera making the claim and the

termination is not, in this case, sufficient to show that the two were related.

Rather, Hebegger could have terminated Lepera when he terminated Moore.

Shaw could have terminated Lepera immediately upon his arrival or shortly

thereafter. Although only a few weeks passed between the complaint and

Lepera's termination, there is no evidence she was terminated because she

complained. Again, as more fully explained above, she was terminated because

of her poor performance as a Human Resources Supervisor.

Even if the plaintiffs had satisfied the elements of a prima facie case of

retaliation, the burden would have shifted to Cagle's to rebut the presumption of

retaliation by producing legitimate reasons for the adverse employment action."

Johnson, 234 F.3d at n.6. "If the defendant offers legitimate reasons, the

20

presumption of retaliation disappears. The plaintiff must then show that the employer's proffered reasons for taking the adverse action were actually a pretext
for prohibited retaliatory conduct." kh (citations omitted).
The Eleventh Circuit Court of Appeals has admonished that "federal courts do not sit as a super-personnel department that reexamines an entity's business decisions. No matter how medieval a firm's practices, no matter how high-handed its decisional process, no matter how mistaken the firm's managers, [courts do] not interfere. Rather our inquiry is limited to whether the employer gave an honest explanation of its behavior." Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000) (citation omitted). Federal courts "are not in the business of adjudging
whether employment decisions are prudent or fair." kh (citation omitted), "An
'employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a
discriminatory reason,'" kh (citing Nix v. WLCY Radio/Rahal! Communications,
738 F.2d 1181, 1187 (11th Cir.1984)). Often mistaken for more than what it is, most plaintiffs fail to comprehend that "Title VII is not a federal 'civility code.'" Mendoza, 195 F.3d at 1245. While an employee who receives criticism or negative evaluations in the workplace may suffer in some way, the protections of Title VII simply do not extend to every action that makes an employee unhappy. Davis v. Town of Lake Park, 245 F.3d at 1242.
Even if the plaintiffs had produced evidence of a prima facie case of retaliation, Cagle's produced evidence that would have rebutted the presumption of retaliation by producing legitimate reasons for Lepera's termination. The record
21

is replete with evidence of mismanagement in the Human Resources Department,

by Moore and Lepera. Lepera had never kept the timekeeping system up to date,

allowing some people to not log in overtime, absences or tardies. Numerous

individuals were not timely enrolled in the insurance plan and on several occasions

were not paid for more than two weeks at a time. Considering the totality of the

I

circumstances, all of these incidents were more than sufficient to serve as a basis

I

for Lepera's termination. This Court is not in the business of adjudging whether

I

I

Lepera's termination was prudent orfair. Cagle's is permitted to fire its employees

II
for good reasons, bad reasons, reasons based on erroneous facts orfor no reason

at all, as long as it is not for discriminatory reasons. There was no retaliatory

discrimination in this case. Defendant Cagle's Motion for Summary Judgment on

the Retaliation claim is GRANTED.

SO ORDERED this 1st day of February, 2005.

N~ ~. ()~.J:.

WILBUR D. OWENS, JR.

•

UNITED STATES DISTRICT JUDGE

I I
Ii IIII Ii II
22

 
 FILED U S liiSTRICT COURT
IN THE UNITED STATES DISTRICT COURT r-' (11 r~ r:~OHGIA
FOR THE MIDDLE DISTRICT OF GEORGIA 5
MACON DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff

APRIL LEPERA,

5:03-CV-219 (WOO)

Plaintiff-Intervenor

v.

CAGLE'S, INC.,

Defendant

ORDER

Plaintiff Equal Employment Opportunity Commission (hereinafter "EEOC") filed this case against Defendant Cagle's alleging discrimination regarding Ms.

Lepera's termination. Ms. Lepera thereafter joined as the Plaintiff-Intervenor and the plaintiffs alleged claims of sexual harassment and retaliation. After a thorough review of the record, the Court determined that a hearing was unnecessary and granted summary judgment for the defendant on all claims. The EEOC thereafter filed a Motion to Reconsider and a Motion to File a Memorandum In Support in Excess of the Five Page Limitation.
The Motion to Exceed Page Limitation is GRANTED. In the Motion to Reconsider, the EEOC contends there are genuine issues of material fact regarding whether the plaintiffs established that Moore's

1

harassment was sufficiently severe and pervasive so as to alter Lepera's work environment and whether Cagle's should be held liable for Moore's misconduct.
Taking each argument in turn, the Court did not choose to discredit Lepera's testimony regarding Moore's alleged misconduct in favorofthe evidence that Habegger's investigation did not uncover any evidence to substantiate the specific claims made by Lepera. As is required in every summary judgment opinion, the Court construed all facts in the plaintiffs' favor, as the non-movants, and made the findings therein based on the undisputed, material facts in the record.
Regarding the "severe and pervasive" element, the facts in this case simply did not show any conduct on Moore's part that altered Lepera's work environment. The alleged harassment continued for 5 or 6 months without a complaint by Lepera to any of Moore's supervisors. Lepera conceded that she knew she could make appointments to see Moore's supervisors and in fact did on several occasions regarding other issues. The plaintiffs did not show that Lepera's work environment was affected in any discriminatory way by Moore's conduct.
Finally, Cagle's is entitled to the Ellerth-Faragher defense and therefore may not be held liable for Moore's alleged harassment based on the following three factors. First, the plaintiffs failed to show that there was any harassment which culminated in a tangible employment action, such as discharge, demotion or undesirable reassignment. There was no evidence that Lepera was terminated based on her sex or gender or that Cagle's, in any way, took Lepera's gender into account when the decision was made to terminate her. Second, the plaintiffs
2

failed to establish harassment in which no adverse 'tangible employment action' was taken but which was sufficient to constructively alter Lepera's working conditions. Third, Cagle's established that it (1) had exercised reasonable care to prevent and promptly correct any sexually harassing behavior by Moore and (2) that Lepera had unreasonably failed to take advantage of the preventive and corrective opportunities provided by Cagle's. Cagle's has a comprehensive, easy to understand policy in place that prohibits sexual harassment and provides detailed instructions on how an employee may go about filing a sexual harassment complaint. After Lepera finally filed a complaint, Habegger, and others, conducted an investigation which resulted in Moore being terminated within a few days. Further, Lepera failed to provide evidence that she was prevented in any way from filing a complaint about Moore in the 5 or 6 months that the alleged harassment was occurring.
Based on the foregoing, the Motion to Reconsider is DENIED. SO ORDERED this 15th day of February, 2005.
WILBUR D. OWENS, JR. UNITED STATES DISTRICT JUDGE
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U.S. District Court [LIVE AREA] United States District Court for the Middle District of Georgia (Macon)
CIVIL DOCKET FOR CASE #: 5:03-cv-00219-WDO

EEOC v. Cagle's Inc. Assigned to: Judge Wilbur D. Owens, Jr Demand: $0 Case in other court: 11th Circuit, 05-11213-B Cause: 42:2000 Job Discrimination (Sex) Plaintiff Equal Employment Opportunity Commission
Intervenor Plaintiff April Lepera

Date Filed: 07/02/2003 Date Terminated: 02/01/2005 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff
represented by Gail S. Coleman U.S. Equal Empoloyment Opportunity Commission Office of General Counsel 1801 L St., NW, Room 7034 Washington, DC 20507 202-663-4055 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcus G. Keegan 40 Technology Parkway South Norcross, GA 30092 770-248-2883 Fax: 770-248-2883 Email: mkeegan@franzen-salzano.com TERMINATED: 09/01/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
S. Robert Royal 100 Alabama Street, S.W. Suite 4R30 Atlanta, GA 30303 404-562-6818 Email: stan.royal@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Charles E. Cox, Jr. P.O. Box 67 Macon, GA 31202 478-757-2990 Fax: 478-757-2991 Email: cecoxjr@cbi.mgacoxmail.com

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V. Defendant Cagle's Inc.
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LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth K. Dorminey 3400 Peachtree Road, N.E. Suite 400, Lenox Towers Atlanta, GA 30326 404-365-0900 Email: bdorminy@bellsouth.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Larry Stine 3400 Peachtree Road, N.E. Suite 400, Lenox Towers Atlanta, GA 30326 404-365-0900 Email: jls@wimlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen J. Jennings 3400 Peachtree Road, N.E. Suite 400, Lenox Towers Atlanta, GA 30326 404-365-0900 Email: kjennings@mcguirewoods.com TERMINATED: 01/30/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martin H. Steckel 3400 Peachtree Road, N.E Suite 400, Lenox Towers Atlanta, GA 30326 404-365-0900 Email: mhs@wimlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Oliver 3400 Peachtree Road, N.E. Suite 400, Lenox Towers Atlanta, GA 30326 404-365-0900 Email: po@wimlaw.com LEAD ATTORNEY
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Intervenor Defendant Cagle's Inc.

ATTORNEY TO BE NOTICED
represented by Kathleen J. Jennings (See above for address) TERMINATED: 01/30/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martin H. Steckel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Oliver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth K. Dorminey (See above for address) ATTORNEY TO BE NOTICED

Date Filed 07/02/2003 07/07/2003 08/20/2003 09/02/2003
09/04/2003 09/08/2003 09/09/2003 09/15/2003 09/22/2003

#

Docket Text

1 COMPLAINT filed; Service of Complaint due by 10/30/03 for Cagle's Inc. (dcp) (Entered: 07/02/2003)
Case referred to ARBITRATION (trh) (Entered: 07/07/2003)
2 WAIVER OF SERVICE returned executed as to Cagle's Inc. 7/9/03. Answer due on 9/8/03 for Cagle's Inc. (dcp) (Entered: 08/20/2003)
3 MOTION by April Lepera to Intervene Complaint of Intervenor on left side of file awaiting ruling. Response due by 9/25/03 Reply to Response due by 10/14/03 for [3-1] motion (cma) (Entered: 09/03/2003)
4 ANSWER to Complaint by Cagle's Inc. (Attorney Kathleen J. Jennings, Paul Oliver, Martin H. Steckel) (hrm) (Entered: 09/04/2003)
5 ELECTION not to proceed before a Magistrate Judge by April Lepera (dcp) (Entered: 09/15/2003)
6 RULES 16 AND 26 ORDER; proposed scheduling/discovery order due on 10/24/03 . ( signed by Judge Wilbur D. Owens Jr. ) (cma) (Entered: 09/09/2003)
7 ELECTION not to proceed before a Magistrate Judge by EEOC (dcp) (Entered: 09/15/2003)
ARBITRATION LETTER mailed. Parties to opt-out of arbitration by 10/20/03 (trh) (Entered: 09/22/2003)

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09/30/2003 10/02/2003 10/14/2003 10/24/2003 10/28/2003
11/24/2003 02/26/2004 02/27/2004
03/02/2004
03/02/2004
04/23/2004 04/28/2004 04/29/2004
05/03/2004 05/04/2004
07/16/2004 07/16/2004 08/02/2004

8 ORDER granting [3-1] motion to Intervene ( signed by Judge Wilbur D. Owens Jr. ) (dcp) (Entered: 09/30/2003)
Case no longer referred to ARBITRATION. (trh) (Entered: 10/02/2003)
9 Intervenor's COMPLAINT by April Lepera. (dcp) (Entered: 10/15/2003)
PROPOSED SCHEDULING/DISCOVERY order received and forwarded to Judge Owens. (dcp) (Entered: 10/24/2003)
10 SCHEDULING/DISCOVERY ORDER executed. Dispositive Motions to be filed by 4/19/04 Discovery to be complete 3/4/04 ; ( signed by Judge Wilbur D. Owens Jr. ) (dcp) (Entered: 10/28/2003)
11 ANSWER by Cagle's Inc. to [9-1] intervenor complaint (dcp) (Entered: 11/24/2003)
12 JOINT MOTION by EEOC, Cagle's Inc., April Lepera, Cagle's Inc. to Extend Time for discovery (dcp) (Entered: 02/27/2004)
MOTION(S) submitted: submitted [12-1] joint motion to Extend Time for discovery ; Original case file and motion sent to Judge Wilbur D. Owens Jr. (dcp) (Entered: 02/27/2004)
13 ORDER granting [12-1] joint motion to Extend Time for discovery reset Discovery completion deadline to 5/3/04 , reset Motion Filing deadline to 6/17/04 ( signed by Judge Wilbur D. Owens Jr. ) (dcp) (Entered: 03/02/2004)
14 CONSENT PROTECTIVE ORDER regarding confidential, private, financial, personal and business information of Cagle's, Inc. ( signed by Judge Wilbur D. Owens Jr. ) (dcp) (Entered: 03/02/2004)
15 RESPONSE by Cagle's Inc. in opposition to plaintiff's Notice of Rule 30(b)(6) deposition (dcp) (Entered: 04/27/2004)
16 JOINT MOTION by EEOC, April Lepera to Extend Time for discovery (dcp) (Entered: 04/29/2004)
MOTION(S) submitted: submitted [16-1] joint motion to Extend Time for discovery ; Original case file and motion sent to Judge Wilbur D. Owens Jr. with proposed Order. (dcp) (Entered: 04/29/2004)
17 NOTICE of Rule 30(b)(6) deposition by EEOC (dcp) (Entered: 05/03/2004)
18 ORDER granting [16-1] joint motion to Extend Time for discovery reset Discovery completion deadline to 6/3/04 , reset Motion Filing deadline to 7/19/04 ( signed by Judge Wilbur D. Owens Jr. ) (dcp) (Entered: 05/04/2004)
19 MOTION by Cagle's Inc. for Summary Judgment Response due by 8/9/04 Reply to Response due by 8/25/04 for [19-1] motion (hrm) (Entered: 07/16/2004)
20 MEMORANDUM by Cagle's Inc. in support of [19-1] motion for Summary Judgment (hrm) (Entered: 07/16/2004)
DEADLINE updated; Response to Motion reset to 8/23/04 for [19-1] motion for Summary Judgment , Reply to Response to Motion reset to 9/10/04 for [19-1] motion for Summary Judgment pursuant to telephone request from Marcus

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08/05/2004 08/05/2004 08/05/2004
08/20/2004
08/20/2004 08/20/2004 08/20/2004 08/25/2004 08/25/2004 08/25/2004 08/25/2004 08/26/2004 08/26/2004 08/26/2004
08/27/2004 08/27/2004

Keegan. Letter of confirmation to follow. (dcp) (Entered: 08/02/2004)
21 RESPONSE/Notice of Objection by EEOC, April Lepera to [19-1] motion for Summary Judgment (dcp) (Entered: 08/05/2004)
DEADLINE updated; Reply to Response to Motion reset to 8/23/04 for [19-1] motion for Summary Judgment (dcp) (Entered: 08/05/2004)
DEADLINE updated; Response to Motion reset to 8/20/04 for [19-1] motion for Summary Judgment , Reply to Response to Motion reset to 9/7/04 for [19-1] motion for Summary Judgment pursuant to telephone request from Charlie Cox's Office. Letter of confirmation to follow. (dcp) (Entered: 08/05/2004)
DEADLINE updated; Response to Motion reset to 8/25/04 for [19-1] motion for Summary Judgment , Reply to Response to Motion reset to 9/13/04 for [19-1] motion for Summary Judgment pursuant to telephone conversation with David in Charles Cox's office and per C. Freeman. (dcp) (Entered: 08/20/2004)
22 RESPONSE by EEOC to [19-1] motion for Summary Judgment (dcp) (Entered: 08/20/2004)
23 STATEMENT OF DISPUTED Material Facts by plaintiff EEOC Re: [19-1] motion for Summary Judgment (dcp) (Entered: 08/20/2004)
24 RESPONSE by EEOC to defendants' statement of undisputed material facts (dcp) (Entered: 08/20/2004)
25 RESPONSE by April Lepera to [19-1] motion for Summary Judgment (dcp) (Entered: 08/25/2004)
26 CERTIFICATION of Need to File Discovery by EEOC in support of [19-1] motion for Summary Judgment (ssa) (Entered: 08/25/2004)
27 DEPOSITION filed by EEOC of deponent(s): Alan Habegger on 5/3/04 court reporter: Stephanie Watkins (ssa) (Entered: 08/25/2004)
28 NOTICE/Request for plaintiff and defendant to file original discovery materials by April Lepera (dcp) (Entered: 08/26/2004)
29 RESPONSE by Cagle's Inc. in opposition to [21-1] motion response (dcp) (Entered: 08/26/2004)
30 MOTION by Marcus G. Keegan to Withdraw as Attorney for plaintiff EEOC. (dcp) (Entered: 08/26/2004)
MOTION(S) submitted: submitted [30-1] motion to Withdraw as Attorney ; Original case file and motion sent to Judge Wilbur D. Owens Jr. (dcp) (Entered: 08/26/2004)
31 MOTION by Cagle's Inc. for Leave to File Statement of Undisputed Material Facts Out of Time and Memorandum in Support (cma) (Entered: 08/27/2004)
MOTION(S) submitted: submitted [31-1] motion for Leave to File Statement of Undisputed Material Facts Out of Time and Memorandum in Support ; Original case file and motion sent to Judge Wilbur D. Owens Jr. (cma) (Entered: 08/27/2004)

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09/01/2004
09/01/2004 09/01/2004
09/01/2004 09/02/2004
09/07/2004 09/08/2004
09/10/2004
09/15/2004 09/15/2004 09/30/2004
10/08/2004 10/08/2004 02/01/2005 02/01/2005 02/01/2005

32 ORDER granting [31-1] motion for Leave to File Statement of Undisputed Material Facts Out of Time and Memorandum in Support ( signed by Judge Wilbur D. Owens Jr. ) (hrm) (Entered: 09/01/2004)
33 UNOPPOSED MOTION by EEOC to Exceed Page Limit on response to motion for summary judgment (hrm) (Entered: 09/01/2004)
MOTION(S) submitted: submitted [33-1] motion to Exceed Page Limit on response to motion for summary judgment ; Original case file and motion sent to Judge Wilbur D. Owens Jr. (hrm) (Entered: 09/01/2004)
34 ORDER granting [30-1] motion to Withdraw as Attorney ( signed by Judge Wilbur D. Owens Jr. ) (cma) (Entered: 09/01/2004)
35 ORDER granting [33-1] motion to Exceed Page Limit on response to motion for summary judgment ( signed by Judge Wilbur D. Owens Jr. ) (hrm) (Entered: 09/02/2004)
36 REPLY by Cagle's Inc. to response to [19-1] motion for Summary Judgment (dcp) (Entered: 09/08/2004)
MOTION(S) submitted: submitted [19-1] motion for Summary Judgment ; Original case file and motion sent to Judge Wilbur D. Owens Jr. (dcp) (Entered: 09/08/2004)
37 RESPONSE by EEOC to [31-1] motion for Leave to File Statement of Undisputed Material Facts Out of Time and Memorandum in Support (dcp) (Entered: 09/10/2004)
38 REPLY by Cagle's Inc. to response to [19-1] motion for Summary Judgment (hrm) (Entered: 09/15/2004)
39 RESPONSE by Cagle's Inc. in opposition to [25-1] motion response (hrm) (Entered: 09/15/2004)
40 ORDER allowing plaintiff to respond to defendant's statement of undisputed material facts by 10/8/04 set Notice of Compliance deadline to 10/8/04 ( signed by Judge Wilbur D. Owens Jr. ) (dcp) (Entered: 09/30/2004)
41 BRIEF/Response to Defendant's Statement of Undisputed Material Facts by Equal Employment Opportunity Commission. (dcp, ) (Entered: 10/08/2004)
42 Statement of Disputed Material Facts re 19 Motion for Summary Judgment filed by April Lepera. (Cox, Charles) (Entered: 10/08/2004)
43 ORDER granting 19 Motion for Summary Judgment . Signed by Judge Wilbur D. Owens Jr. on 2/1/05. (dcp, ) (Entered: 02/01/2005)
44 JUDGMENT in favor of defendant against plaintiff Deposition Disposal Letter due by 4/11/2005. (dcp, ) (Entered: 02/01/2005)
CERTIFICATE OF SERVICE - I certify that on this date I have mailed by United States Postal Service a copy of 43 Order on Motion for Summary Judgment, 44 Judgment including any attachments filed with this document to all non-CM/ECF participants as indicated on the Notice of Electronic Filing. By dcp, Deputy Clerk. (dcp, ) (Entered: 02/01/2005)

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02/10/2005 02/11/2005 02/15/2005 02/18/2005 03/03/2005 03/04/2005 03/04/2005
03/11/2005 03/29/2005 03/29/2005
04/15/2005 04/15/2005
04/28/2005

45 BILL OF COSTS by Cagle's Inc.. Response to Bill of Costs due by 3/7/2005 (Attachments: # 1 Exhibit Transcript invoices)(Stine, James) (Entered: 02/10/2005)
46 MOTION for Reconsideration re 43 Order on Motion for Summary Judgment by Equal Employment Opportunity Commission filed by S. Robert Royal. Response to Motion due by 2/24/2005 (Royal, S.) (Entered: 02/11/2005)
47 ORDER denying 46 Motion for Reconsideration and granting Motion for Leave to File Memorandum in Excess of the Five Page Limit. . Signed by Judge Wilbur D. Owens Jr. on 2/15/05. (dcp, ) (Entered: 02/15/2005)
48 AMENDED DOCUMENT by Equal Employment Opportunity Commission. Motion for Reconsideration. (dcp, ) (Entered: 02/18/2005)
49 NOTICE OF APPEAL as to 43 Order on Motion for Summary Judgment, 44 Judgment by April Lepera. Transcript Information Form due by 3/21/2005. (Cox, Charles) (Entered: 03/03/2005)
USCA Appeal Fees received $ 255 receipt number 518441 re 49 Notice of Appeal filed by April Lepera, (dcp, ) (Entered: 03/04/2005)
50 Letter of Transmittal re 49 Notice of Appeal. Certified Copy of Notice of Appeal, Docket Sheet, Order and Judgment, tabs [43,44,46,47,49] mailed to USCA. NOTICE: A Civil Appeal Statement must be filed with the Court of Appeals. A copy of this form may be obtained from the District Clerk's Office or the district court internet site (www.gamd.uscourts.gov). (dcp, ) (Entered: 03/04/2005)
51 USCA Case Number 05-11213-B re 49 Notice of Appeal filed by April Lepera,. (dcp, ) (Entered: 03/11/2005)
52 TAXATION OF COSTS in the amount of $ 2,288.31 against Equal Employment Opportunity Commission, April Lepera (dcp, ) (Entered: 03/29/2005)
CERTIFICATE OF SERVICE - I certify that on this date I have mailed by United States Postal Service a copy of 52 Taxation of Costs including any attachments filed with this document to all non-CM/ECF participants as indicated on the Notice of Electronic Filing. By dcp, Deputy Clerk. (dcp, ) (Entered: 03/29/2005)
53 NOTICE OF APPEAL as to 47 Order on Motion for Reconsideration, 43 Order on Motion for Summary Judgment, 44 Judgment by Equal Employment Opportunity Commission. Transcript Information Form due by 5/2/2005. (Royal, S.) (Entered: 04/15/2005)
54 Letter of Transmittal re 53 Notice of Appeal. Certified Copy of Notice of Appeal, Docket Sheet, Order and Judgment mailed to USCA. NOTICE: A Civil Appeal Statement must be filed with the Court of Appeals. A copy of this form may be obtained from the District Clerk's Office or the district court internet site (www.gamd.uscourts.gov). (dcp, ) (Entered: 04/15/2005)
55 TRANSCRIPT INFORMATION FORM by Equal Employment Opportunity Commission. re 53 Notice of Appeal NO TRANSCRIPTS ORDERED (dcp, ) (Entered: 04/28/2005)

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56 Certificate of Readiness of Record on Appeal forwarded to USCA re 49 Notice of Appeal, 53 Notice of Appeal (Attachments: # 1 docket)(dcp, ) (Entered: 04/28/2005)
57 Certified and Transmitted Record on Appeal to US Court of Appeals re 53 Notice of Appeal (nop) (Entered: 08/11/2005)
58 USCA Appellate JUDGMENT affirmed district court as to 49 Notice of Appeal filed by April Lepera,, 53 Notice of Appeal filed by Equal Employment Opportunity Commission, (dcp, ) (Entered: 04/11/2006)
CERTIFICATE OF SERVICE - I certify that on this date I have mailed by United States Postal Service a copy of 58 USCA Appellate Judgment including any attachments filed with this document to all non-CM/ECF participants as indicated on the Notice of Electronic Filing. By dcp, Deputy Clerk. (dcp, ) (Entered: 04/11/2006)
59 NOTICE TO COUNSEL: This case has been closed, therefore deposition transcripts filed in paper form in this case, with the exception of those filed by court reporters or any other transcripts filed electronically, will be destroyed unless the filer(s) of those documents make arrangements with the Clerk's Office to retrieve them before the scheduled disposal date. Depositions to be destroyed on 4/25/2006. (dcp, ) (Entered: 04/11/2006)

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 Lepera v. Cagle’s, Inc., 168 Fed.Appx. 917 (2006)
168 Fed.Appx. 917 This case was not selected for publication in the
Federal Reporter. Not for Publication in West’s Federal Reporter See
Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Eleventh Circuit Rules 36-2, 36-3. (Find CTA11 Rule 36-2 and Find CTA11
Rule 36-3) United States Court of Appeals,
Eleventh Circuit.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant,
April Lepera, Intervenor-Plaintiff-Appellant, v.
CAGLE’S, INC., Defendant-Intervenor-Defendant-Appellee.
No. 05-11213. | Feb. 24, 2006.
Synopsis Background: Former employee and Equal Employment Opportunity Commission (EEOC) brought Title VII sexual harassment and retaliation claims against employer, which terminated employee 16 days after she made sexual harassment complaint against her supervisor. The United States District Court for the Middle District of Georgia entered summary judgment in favor of employer. Employee and EEOC appealed.
Holdings: The Court of Appeals held that:
[1] subjective fears of employee, who said she feared retaliation if she reported sexual harassment because former employees had told her that they believed they were terminated for reporting racial harassment, did not excuse employee’s failure to report harassment in compliance with employer’s policy, and thus, employer would not be held liable for supervisor’s alleged harassment, and
[2] although employee was terminated only 16 days after making harassment complaint, employer’s justification for her termination, which was that she was fired for poor job performance, was non-retaliatory and supported by the record.
Affirmed.
Attorneys and Law Firms

*918 Gail S. Coleman, Washington, DC, for Plaintiff-Appellant/Intervenor-Plaintiff-Appellant.

Charles E. Cox, Jr., Macon, GA, for Plaintiff-Appellant.

James L. Stine, Elizabeth K. Dorminey, Wimberly, Lawson, Steckel, Nelson & Schneider, P.C., Atlanta, GA, for Defendant-Intervenor-Defendant-Appellee.

Appeals from the United States District Court for the Middle District of Georgia. D.C. Docket No. 03-00219-CV-WDO-05. Before BLACK, HULL and FARRIS,* Circuit Judges.

*

Honorable Jerome Farris, United States Circuit Judge

for the Ninth Circuit, sitting by designation.

Opinion
PER CURIAM:
[1] 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. 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,
1

Lepera v. Cagle’s, Inc., 168 Fed.Appx. 917 (2006)
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, 118 S.Ct. 2275, 141 L.Ed.2d 662 (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.
*919 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. 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.
[2] 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
Parallel Citations
2006 WL 452071 (C.A.11 (Ga.))
	  

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