EEOC v. Cagle's, Inc. (11th Cir.) Reply brief Sept. 9, 2005 No. 05-12119-B (Consolidated with No. 05-11213-BB) _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, and APRIL LEPERA, Plaintiff-Intervenor, v. CAGLE'S, INC., Defendant-Appellee. ___________________________________________ On Appeal from the United States District Court for the Middle District of Georgia, Macon Division Hon. Wilbur D. Owens, Jr., Judge ___________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ___________________________________________ JAMES L. LEE GAIL S. COLEMAN Deputy General Counsel Attorney EQUAL EMPLOYMENT LORRAINE C. DAVIS OPPORTUNITY COMMISSION Acting Associate General Counsel Office of General Counsel 1801 L Street, N.W., Room 7034 CAROLYN L. WHEELER Washington, D.C. 20507 Assistant General Counsel (202) 663-4055 gail.coleman@eeoc.gov No. 05-12119-B (Consolidated with No. 05-11213-BB) EEOC v. Cagle's, Inc. CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT The following individuals should be added to the Certificate of Interested Persons and Corporate Disclosure Statement included in the EEOC's Opening Brief: Davis, Lorraine C. (Acting Associate General Counsel, EEOC) Lee, James L. (Deputy General Counsel) _____________________________ GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7034 Washington, D.C. 20507 (202) 663-4055 gail.coleman@eeoc.gov Page 1 of 1 TABLE OF CONTENTS Certificate of Interested Persons and Corporate Disclosure Statement. . . . . . . . . . . . . . . . . 1 of 1 Table of Authorities . . . . . . . . . . . . . . . . . . . . .iii Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 A. The district court erred in not considering all of the record evidence because the EEOC properly contested Cagle's statement of undisputed material facts.. . . . . . . . . . . . . . . . . .3 B. Cagle's misstates the summary judgment standard, misrepresents the facts, and ignores evidence from which a reasonable jury could find for the plaintiffs on both the sexual harassment and retaliation claims.. . . . . . . . . . . . . . . . . . . . . . .5 C. Moore's termination does not absolve Cagle's of liability for its failure to address sexual harassment in the workplace because Habegger admitted that the termination was unrelated to Lepera's sexual harassment complaint. . . . . . . . . . . . . . . . . . 10 D. Instead of addressing the EEOC's evidence that Cagle's reasons for firing Lepera were pretextual, Cagle's continues to focus on Lepera's previous job performance – even though Habegger admitted that her termination was based solely on other reasons.. 13 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Certificate of Compliance Certificate of Service TABLE OF AUTHORITIES Cases Allen v. Tyson Foods, Inc., 121 F.3d 642 (11th Cir. 1997) 5, 8 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . .6 Benefield v. Fulton Co., Ga., No. 04-12313, 130 Fed. Appx. 308 (11th Cir. Apr. 29, 2005) . . . . . . 11 Gilooly v. Mo. Dep't of Health & Senior Servs., ___ F.3d ___, No. 04-2460, 2005 WL 2086428 (8th Cir. Aug. 31, 2005). . . . . . . . . . . . . . . . 14 Macklin v. Singletary, 24 F.3d 1307 (11th Cir. 1994) . . . 5 Plotke v. White, 405 F.3d 1092 (10th Cir. 2005). . . . . . 10 U.S. v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fl., 363 F.3d 1099 (11th Cir. 2004) . . . . . . . . . . . . . . . . . . . 3, 5 Rules Fed. R. App. P. 4(a)(1)(B) . . . . . . . . . . . . . . . . .2 Fed. R. App. P. 4(a)(4)(A)(iv) . . . . . . . . . . . . . . .2 Other Authorities EEOC Compliance Manual Notice 915.002, "Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors" (June 18, 1999), available at http://www.eeoc.gov/policy/docs/harassment.html . . . . 13 No. 05-12119-B (Consolidated with No. 05-11213-BB) _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, and APRIL LEPERA, Plaintiff-Intervenor, v. CAGLE'S, INC., Defendant-Appellee. ___________________________________________ On Appeal from the United States District Court for the Middle District of Georgia, Macon Division Hon. Wilbur D. Owens, Jr., Judge ___________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ___________________________________________ ARGUMENT In its opening brief, the EEOC urged this Court to reverse the district court's judgment for Cagle's.<1> Opening Br. at 43. The EEOC argued that the district court failed to consider important pieces of record evidence and did not look at the evidence it did consider in the light most favorable to the plaintiffs.<2> Specifically, the EEOC argued that a reasonable jury could find that Lepera was subjected to severe or pervasive sexual harassment, id. at 30-33, that Cagle's is liable for the harassment, id. at 33-38, and that Lepera's termination was illegal retaliation for her sexual harassment complaint, id. at 38-42. In its responsive brief, Cagle's misstates the facts and, like the district court, neglects to mention evidence that would support a judgment for the plaintiffs. Cagle's also misstates the summary judgment standard and dismisses as irrelevant the question whether a reasonable jury could find discrimination, liability, and/or retaliation. Cagle's Br. at 17. For the following reasons, the EEOC asks this Court to reject Cagle's arguments and to reverse the award of summary judgment. A. The district court erred in not considering all of the record evidence because the EEOC properly contested Cagle's statement of undisputed material facts. As the EEOC explained in its opening brief, Opening Br. at 27-30, it properly supported each of its objections to Cagle's statement of material facts. In light of the district court's failure to specify the EEOC's purported errors, (Vol. 3, R.43, Order at 2 n.2), this Court can only guess about why the district court considered certain unnamed facts to be inadequately controverted. See Cagle's Br. at 14 ("What appears to have troubled the District Court . . ."); see also U.S. v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fl., 363 F.3d 1099, 1102 n.2 (11th Cir. 2004) (criticizing district court for not specifying which portions of the record it considered, and noting that district court's silence on this point hindered "effective review of the case on appeal"). Contrary to the district court's characterization, (Vol. 3, R.43, Order at 2 n.2), not one of the EEOC's responses said only that a fact was "disputed." See Opening Br. at 28- 29. Where the EEOC disputed Cagle's statement, it gave specific objections supported with page cites, cross-referenced a response to an earlier paragraph, or noted that Cagle's had not supported its own claim with a valid record cite. Id. Some of the EEOC's responses criticized Cagle's statements as "irrelevant as to the reason purportedly proffered by Defendant for discharging Lepera." (Vol. 3, R.41, EEOC's Response at ¶¶ 33-37, 45.) This criticism appropriately called into question Cagle's assertion that the facts at issue were "material." See Local Rule 56 (only "material" facts may be deemed admitted if not specifically controverted). Cagle's erroneously states that despite its criticism of the EEOC's responses, the district court reviewed the entire record. Cagle's Br. at 17. The district court, however, said otherwise. Rather than saying that it considered all of the evidence, it said that it considered "the material, undisputed facts that were not specifically controverted by the plaintiffs and that are supported by the record." (Vol. 3, R.43, Order at 2 n.2.) Based on this statement, the district court admitted that it did not consider the disputed facts. Cagle's disingenuously charges that the EEOC "owes this Court the courtesy of specifics" about precisely which facts the district court failed to consider. Cagle's Br. at 17. In its opening brief, the EEOC recited numerous facts that the district court did not mention. Opening Br. at 3-19. Given the district court's lack of clarity about which portions of the record it did and did not consider, (Vol. 3, R.43, Order at 2 n.2), this Court must assume that the facts which the district court failed to mention are the ones that it overlooked. In any event, because this Court must review the award of summary judgment de novo, it must now take its own look at the entire record. See Macklin v. Singletary, 24 F.3d 1307, 1312 (11th Cir. 1994) ("with issues subject to de novo review on appeal, our scope of review is at its broadest and our willingness to decide without the benefit of a district court ruling should increase commensurately"). B. Cagle's misstates the summary judgment standard, misrepresents the facts, and ignores evidence from which a reasonable jury could find for the plaintiffs on both the sexual harassment and retaliation claims. Inexplicably accusing the EEOC of "stand[ing] the burden of proof on its head," Cagle's acknowledges the very point the EEOC made—that it had an obligation to establish the absence of a genuine issue of material fact. Cagle's Br. at 15. Cagle's obligation is not merely a burden of production; it is a burden of proof. Although the EEOC did highlight disputed issues in its response to Cagle's statement of material facts, it had no obligation to do so. Even if a non-movant fails to present any evidence at all, a district court "cannot base the entry of summary judgment on the mere fact that the motion was unopposed, but, rather, must consider the merits of the motion." One Piece of Real Prop., 363 F.3d at 1101; see also Allen v. Tyson Foods, Inc., 121 F.3d 642, 645 (11th Cir. 1997) ("The moving party has the burden of showing the absence of a genuine issue as to any material fact, and in deciding whether the movant has met this burden the court must view the movant's evidence and all factual inferences arising from it in the light most favorable to the nonmoving party."). Cagle's also misunderstands the standard by which the court must review a summary judgment motion. According to Cagle's, "The test is not whether a reasonable jury could find for the plaintiff, but rather whether the plaintiff has made a sufficient showing for the Court to allow a jury to consider the evidence." Cagle's Br. at 17. In fact, there is no difference between these two standards, apart from Cagle's erroneous attempt to shift the burden of proof to the plaintiff. In order for the defendant to meet its own burden of showing the absence of a genuine issue of material fact, it must demonstrate that no reasonable jury could rule in the plaintiff's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) ("summary judgment will not lie if . . . the evidence is such that a reasonable jury could return a verdict for the nonmoving party"). Here, there is more than enough evidence from which a reasonable jury could find for the plaintiffs. Cagle's argues otherwise by omitting all reference to evidence that is unfavorable to its own position. Both the district court and Cagle's fail to mention, let alone discuss, evidence that helps to establish the pervasiveness and severity of Moore's sexual harassment, including the various occasions on which Moore physically assaulted Lepera and pulled at her clothing. See Opening Br. at 5-8. Likewise, both the district court and Cagle's are completely silent regarding Habegger's statement that he fired Moore for reasons unrelated to the harassment. (Vol. 2, R.22, Habegger Dep. at 65-66, 80.) Habegger's admission negates Cagle's claim that the termination shows that it responded appropriately to Lepera's complaint. Both the court and Cagle's similarly ignore all the evidence that undermines Cagle's purported reasons for firing Lepera: (1) Habegger's testimony that he attributed Lepera's alleged leadership problems to the absence of a full-time Human Resources Director (and, a jury could infer, therefore considered any leadership problems to be temporary) (id. at 69); (2) Shaw's testimony that the HR clerks' complaints about Lepera "in and of itself would not have been cause for me to recommend termination," (Vol. 2, R.22, Shaw Dep. at 94); (3) Habegger's testimony that Lepera's termination had nothing to do with her performance prior to her sexual harassment complaint, (Vol. 2, R.22, Habegger Dep. at 86-87); and (4) Lepera's testimony that she repeatedly asked Shaw for more work but that he demoted her, refused to give her more work, and seemed determined to marginalize her, (Vol. 2, R.22, Lepera Dep. at 174-96). On a motion for summary judgment, this Court must assume that a jury would believe all of this evidence and discredit any contrary evidence that Cagle's presents in its brief. Allen, 121 F.3d at 645. Cagle's misleads this Court not only by omitting references to critical pieces of evidence, but also by misstating facts and drawing all inferences in its own favor rather than in favor of the plaintiffs. For example, in discussing the harassment claim, Cagle's errs when it claims that Lepera admitted that she "never asked Moore to stop when he told inappropriate jokes or stories and never asked him to stop when he engaged in inappropriate conduct." Cagle's Br. at 5. To the contrary, Lepera testified that she told Moore, "I really don't want to hear this, David," but that her objections "never stopped him." (Vol. 2, R.22, Lepera Dep. at 127; see also id. at 113 (when Lepera objected to his frequent dirty jokes, Moore just laughed).) Cagle's also draws a questionable inference when it suggests that Lepera would not have objected to Moore's sexual harassment because she allegedly did not object to sexual talk among her female colleagues. See Cagle's Br. at 4. Lepera charged not only that Moore spoke to her in a sexual manner, but also that he repeatedly engaged in unwanted touching. She testified that Moore grabbed at her pants and her shirt, physically cornered her in the break room, and pressed against her in a sexual way. On one occasion, she said, Moore grabbed her so hard that he left a bruise on her arm. Opening Br. at 5-8. The sexual banter that Cagle's highlights among Lepera's female colleagues does not compare to the harassment that she experienced from her male supervisor – harassment that included groping and other physical assaults. Additionally, in discussing the retaliation claim, Cagle's emphasizes irrelevant evidence when it stresses that Lepera's subordinates complained about her to Habegger. Cagle's Br. at 9-10. Whether or not the subordinates complained, and regardless of what they said, a jury could conclude that Habegger considered any interpersonal problems to be temporary. (See Vol. 2, R.22, Habegger Dep. at 69 (attributing interpersonal problems to temporary absence of permanent HR director).) A jury could also believe Shaw's testimony that these problems were insufficient to warrant termination. (Vol. 2, R.22, Shaw Dep. at 94.) In light of this evidence, a jury could view Cagle's current reliance on Lepera's alleged interpersonal problems as evidence of pretext. See Plotke v. White, 405 F.3d 1092, 1103 (10th Cir. 2005) (employer's post hoc explanation for discharge is evidence of pretext). C. Moore's termination does not absolve Cagle's of liability for its failure to address sexual harassment in the workplace because Habegger admitted that the termination was unrelated to Lepera's sexual harassment complaint. Erroneously seeking to take advantage of the Faragher affirmative defense to liability for sexual harassment, Cagle's completely ignores Habegger's admission that Moore's termination had nothing to do with Lepera's sexual harassment complaint. (Vol. 2, R.22, Habegger Dep. at 65-66, 80.) Arguing that the termination ended the problem of sexual harassment in the workplace, Cagle's asks whether Moore "should have been tarred and feathered to boot." Cagle's Br. at 22. This question misses the point. The EEOC acknowledged in its opening brief that Moore's coincidental termination had the fortunate effect of removing Lepera's harasser from the workplace. Opening Br. at 35. The termination, however, did not resolve the deeper problems that allowed the harassment to occur in the first place and left it likely that other harassment would occur in the future. Id. at 35-37. A jury could reasonably wonder why Cagle's Human Resources Director – the very individual responsible for enforcing the company's anti-harassment policy – felt free to harass Lepera for eight months. A jury could conclude that he realized that Cagle's anti-harassment policy was so little publicized that not even Lepera, who worked in the HR department, was familiar with it.<3> (Vol. 2, R.22, Lepera Dep. at 142.) Likewise, a jury could believe that he counted on Lepera's being afraid to complain because she reasonably feared retaliation. Cagle's dismisses Lepera's fear as "the feeblest of excuses" even though her fear stemmed from her knowledge of two employees whom Cagle's had fired only two weeks after they complained of discrimination. Cagle's Br. at 23. Cagle's explains those earlier terminations as based solely on the employees' attendance records. Id. Whether or not attendance was the stated reason for those discharges, the timing certainly suggests the possibility of retaliation. Even Cagle's admits that it only sporadically enforced its policy of terminating employees for faulty attendance.<4> Id. at 3. In any event, the issue is not why the earlier complainants were actually fired; it is whether Lepera reasonably believed that their terminations were linked to their complaints. For the reasons described in the EEOC's opening brief, a jury could find that she did. See Opening Br. at 37-38. Contrary to its contentions, Cagle's also did not address Lepera's complaint in a manner designed to deter future harassment. Cagle's is wrong when it says that "Habegger launched a thorough investigation, right away." Cagle's Br. at 5. Habegger himself testified that he did not know what he was doing. (Vol. 2, R.22, Habegger Dep. at 38.) His investigation cannot be considered "thorough" when he did not even follow up on Moore's comment that he "should have seen [Lepera's allegation] coming." (Id. at 33.) Additionally, the fact that Habegger could not find witnesses to corroborate Lepera's allegations does not mean (as Cagle's implies) that the allegations were untrue. The EEOC seeks relief not because Cagle's handled its investigation discreetly, but because it abandoned the investigation without reaching any conclusion, fired Moore for unrelated reasons, and then treated the matter as closed. Cagle's never dealt directly with the issue of sexual harassment in the workplace. It provided no further training to its workforce – training which would have been sorely needed if Lepera was correct that the Human Resources Director was himself a sexual harasser. Cagle's could have provided training without implicating Moore; certainly an employer can and should review the rules regarding sexual harassment without "tar[ring] and feather[ing]" any particular individual. See EEOC Compliance Manual Notice 915.002, "Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors," at sec. V(C)(2) (June 18, 1999), available at http://www.eeoc.gov/policy/docs/harassment.html ("An employer should ensure that its supervisors and managers understand their responsibilities under the organization's anti-harassment and complaint procedure. Periodic training of those individuals can help achieve that result."). D. Instead of addressing the EEOC's evidence that Cagle's reasons for firing Lepera were pretextual, Cagle's continues to focus on Lepera's previous job performance – even though Habegger admitted that her termination was based solely on other reasons. Contrary to fact, Cagle's seeks to portray Lepera as incompetent by blaming her for longstanding problems in the Human Resources department. Cagle's Br. at 25. In light of Habegger's testimony that he and Shaw agreed not to consider her past performance in deciding whether to fire her, however, (Vol. 2, R.22, Habegger Dep. at 86-87), Lepera's competence is not a genuine issue of material fact for purposes of these summary judgment proceedings.<5> See Gilooly v. Mo. Dep't of Health & Senior Servs., ___ F.3d ___, No. 04-2460, 2005 WL 2086428, at *5 (8th Cir. Aug. 31, 2005) (reversing summary judgment for employer in Title VII retaliation case in part because the reason the district court cited for plaintiff's termination was one that "those responsible for his firing expressly denied . . . was the justification"). The EEOC agrees, of course, that an employer may terminate an incompetent employee whether or not that employee has filed a sexual harassment complaint. The question in this retaliation case is whether Lepera's termination was actually due to incompetence or whether Cagle's claims of incompetence are simply a pretext for illegal retaliation. Here, Habegger testified that he and Shaw expressly agreed not to consider Lepera's pre-complaint performance in deciding whether to fire her. (Vol. 2, R.22, Habegger Dep. at 86-87.) Lepera testified – and a jury could believe – that the sole reason she produced little work after Shaw arrived was that Shaw demoted her, stripped her of all her responsibilities, and flatly refused to let her be productive. (Vol. 2, R.22, Lepera Dep. at 174-96.) Contrary to Cagle's claim that Lepera did not carry out her assignment to update the bulletin boards, Cagle's Br. at 9, Lepera testified that she ordered new backing but had to wait for it to arrive before she could work on the bulletin boards, and that she had told Shaw this fact. (Vol. 2, R.22, Lepera Dep. at 186, 188-90, 192-93.) It is possible that a jury might agree with Cagle's that Lepera was fired for incompetence. It is at least equally possible that a jury could agree with the plaintiffs that Cagle's manufactured the appearance of incompetence in order to cover up a retaliatory discharge. Given that this Court must resolve all disputes of material fact in favor of the plaintiffs and must draw all reasonable inferences in the plaintiffs' favor, this is not a question that can be decided at summary judgment. CONCLUSION Cagle's brief distorts the record and misstates the law. For the reasons stated here and in the EEOC's opening brief, the EEOC urges this Court to reverse and remand. Respectfully submitted, JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ____________________________ GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7034 Washington, D.C. 20507 (202) 663-4055 gail.coleman@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains _______ words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. ______________________________ CAROLYN L. WHEELER Assistant General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7054 Washington, D.C. 20507 Dated: September 9, 2005 [Brief must contain no more than 7,000 words] CERTIFICATE OF SERVICE I, Carolyn L. Wheeler, hereby certify that I filed this brief with the Court by sending, via Federal Express, the original plus six copies and by uploading an electronic copy this 9th day of September, 2005. I also certify that I served one copy of this brief this 9th day of September, 2005, by first-class mail, postage pre-paid, to the following counsel of record: Charles E. Cox, Jr. P.O. Box 67 830 Mulberry St., Suite 203 Macon, GA 31202 Elizabeth K. Dorminey James Larry Stine Wimberly, Lawson, Steckel, Nelson & Schneider, P.C. Suite 400, Lenox Towers 3400 Peachtree Road, N.E. Atlanta, GA 30326 _____________________________ CAROLYN L. WHEELER Assistant General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7054 Washington, D.C. 20507 **************************************************************** <> <1> Cagle’s erroneously claims that the EEOC’s notice of appeal was untimely filed. Cagle’s Br. at 1. In fact, the EEOC’s motion for reconsideration extended the time for filing a notice of appeal until sixty days after entry of the district court’s order disposing of the motion. Fed. R. App. P. 4(a)(1)(B), 4(a)(4)(A)(iv). The district court denied the EEOC’s motion on February 15, 2005, (Vol. 3, R.47, Order), and the EEOC filed its notice of appeal 59 days later, on April 15, 2005. (Vol. 3, R.53, Notice of Appeal). The notice was therefore timely. <2> The EEOC’s opening brief contains two erroneous record citations. Lepera’s quote on page 5 about Moore’s “pretty bad stories” comes from page 113 of her deposition, as does the statement on page 6 that Moore told dirty jokes once a week and that when Lepera said she did not appreciate the jokes, Moore just laughed. (Vol. 2, R.22, Lepera Dep. at 113.) <3> Lepera’s lack of familiarity with the anti-harassment policy renders this case unlike Benefield v. Fulton Co., Ga., No. 04-12313, 130 Fed. Appx. 308, 312 (11th Cir. Apr. 29, 2005) (reproduced in addendum to Cagle’s Brief), in which the employer “aggressively and thoroughly disseminated” its policy against harassment. <4> Although Cagle’s now blames Lepera for problems with the attendance system, Cagle’s Br. at 7-8, the evidence shows that Lepera tried unsuccessfully to get Moore to change the way he handled attendance records. (Vol. 2, R.22, Lepera Dep. at 78, 81.) The evidence further shows that Moore’s failure to do so was one of the reasons that Habegger fired him. (Vol. 2, R.22, Habegger Dep. at 65-66, 80.) <5> Cagle’s effort to portray Lepera as incompetent is factually inaccurate. Uncontroverted evidence shows that Moore was a micromanager and that Habegger held him, not Lepera, responsible for the department’s problems. (Vol. 2, R.22, Lepera Dep. at 69, 76, 77; Vol. 2, R.22, Habegger Dep. at 65-66, 80.) Although Cagle’s seeks to credit Moore for discovering that Cagle’s had hired illegal aliens, Cagle’s Br. at 4, the evidence shows that it was Lepera who made this discovery on her own initiative. (Vol. 2, R.22, Lepera Dep. at 99-102.) It was Moore, not Lepera, who had hired the illegal aliens. (Id. at 99; Vol. 2, R.22, Moore Dep. at 45-46.)