EEOC v. Cagle's, Inc. (11th Cir.) Petition for Rehearing Mar. 15, 2006 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 __________________________________________ PETITION OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION FOR REHEARING __________________________________________ JAMES L. LEE GAIL S. COLEMAN Deputy General Counsel Attorney EQUAL EMPLOYMENT VINCENT J. BLACKWOOD OPPORTUNITY COMMISSION Acting Associate General Counsel Office of General Counsel 1801 L Street, N.W., Room 7034 CAROLYN L. WHEELER Washington, DC 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 undersigned counsel hereby certifies that the Certificates of Interested Persons contained in the EEOC's previously filed appellate briefs are complete and correct. _______________________________ GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7034 Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov Page 1 of 1 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS. . . . . . . . . . . 1 of 1 TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . ii STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . .2 A. Statement of Facts2 B. Panel Decision4 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . .6 In concluding that "the record supports [Cagle's] non- retaliatory justification for [Lepera's] termination," the panel misapplied the summary judgment standard and improperly made a factual finding. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . 10 CERTIFICATE OF SERVICE ADDENDUM: Panel Decision TABLE OF AUTHORITIES Cases Conroy v. Abraham Chevrolet-Tampa, Inc., . . . . . . . . . . . . . . .375 F.3d 1228 (11th Cir. 2004)8 Goldsmith v. City of Atmore, 996 F.2d 1155 (11th Cir. 1993).8 Harris v. Coweta County, Ga., 406 F.3d 1307 (11th Cir. 2005)6 Mercado v. City of Orlando, 407 F.3d 1152 (11th Cir. 2005) .6 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000)8 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 __________________________________________ PETITION OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION FOR REHEARING __________________________________________ STATEMENT OF THE ISSUE Did this Court misapply the summary judgment standard and wrongly weigh the evidence when it concluded that "the record supports [Cagle's] non-retaliatory justification for [Lepera's] termination"? STATEMENT OF THE CASE A. Statement of Facts In 1999, Cagle's opened a new plant in Perry, Georgia to produce broiler chickens. (Vol. 2, R.22, Habegger Dep. at 14.) Before the plant began operations, the plant manager hired David Moore as Human Resources Manager and Moore, in turn, hired April Lepera as a supervisor in the Human Resources Department. (Vol. 2, R.22, Moore Dep. at 32; Vol. 2, R.22, Habegger Dep. at 13; Vol. 2, R.22, Lepera Dep. at 112.) Lepera alleged that Moore sexually harassed her over the course of approximately six months. (Vol. 2, R.22, Lepera Dep. at 109-15, 122-32, 163-65, 209-10.) After unsuccessfully attempting to handle his behavior on her own, Lepera complained to the plant's general manager. (Id. at 106, 113.) She testified that she had been reluctant to complain earlier because she knew of two other Cagle's employees who had been fired only two weeks after complaining of discrimination. (Id. at 132-36, 143, 168.) The general manager quickly suspended and then fired Moore. (Vol. 2, R.22, Habegger Dep. at 35, 65-66.) Sixteen days later, he fired Lepera as well. (Vol. 2, R.22, Lepera Dep. at 106, 201, 203-04.) Although the general manager said at the time of her termination that he was not considering her previous performance, (Vol. 2, R.22, Habegger Dep. at 86- 87), Cagle's subsequently claimed in litigation that it had terminated Lepera for long-standing incompetence. (Vol. 1, R.20, Memo at 22.) The EEOC and Lepera sued Cagle's under Title VII, alleging sexual harassment and retaliation. (Vol. 1, R.1, EEOC's Complaint; Vol. 1, R. 9, Lepera's Complaint.) The district court granted summary judgment on both claims. (Vol. 3, R.43, Order.) Although the court admitted that "Moore's behavior was boorish and inappropriate," it did not consider his actions to constitute sexual harassment. (Id. at 15.) Additionally, the court held that Cagle's was entitled to an affirmative defense to liability because it acted promptly and appropriately as soon as Lepera complained. (Id. at 18-19.) With respect to retaliation, the court said, "the evidence shows the claim and the termination were wholly unrelated." (Id. at 20.) Even assuming that the plaintiffs could establish a prima facie case of retaliation, the court said, "Cagle's produced evidence that would have rebutted the presumption of retaliation by producing legitimate reasons for Lepera's termination." (Id. at 21.) On appeal, the EEOC argued: (1) the district court erroneously failed to consider all of the record evidence in the light most favorable to the plaintiffs and failed to make all reasonable inferences in the plaintiffs' favor; (2) the district court unfairly downplayed the evidence in concluding that the complained-of conduct was neither severe nor pervasive; (3) a reasonable jury could find that Cagle's mishandled Lepera's sexual harassment complaint and was therefore not entitled to an affirmative defense to liability; (4) a jury could find that Lepera did not unreasonably delay in making her sexual harassment complaint, which is an independent reason why Cagle's may not invoke an affirmative defense to liability; (5) the district court erred in finding no prima facie case of retaliation; and (6) the evidence raises a genuine issue of material fact regarding Cagle's motivation for firing Lepera. (Opening Br. at 27-42.) B. Panel Decision This Court agreed with the EEOC that Moore's conduct constituted sexual harassment. However, the Court noted that "employer liability for a supervisor's sexual harassment is a two-way street." (Slip Op. at 2.) Despite the EEOC's arguments that Cagle's had responded inadequately to Lepera's complaint by firing Moore but then providing no training on sexual harassment, the Court held that terminating Moore was an appropriate response. The Court also held that Lepera had unreasonably delayed in notifying the company of Moore's conduct. "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," the Court said, "it was Ms. Lepera's burden to allege sufficient facts to justify consideration of her allegations. She failed to do so." (Id. at 3-4.) The Court concluded that "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." (Id. at 4.) On the retaliation claim, the Court agreed with the EEOC that the plaintiffs had established a prima facie case. (Id.) Nevertheless, the Court ruled against the plaintiffs. The Court did not acknowledge that its role, on review of an award of summary judgment, was only to determine whether the plaintiffs had raised a genuine issue of material fact. Without discussing any of the plaintiffs' evidence of pretext, the Court said simply: "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." (Id. at 4.) ARGUMENT In concluding that "the record supports [Cagle's] non- retaliatory justification for [Lepera's] termination," the panel misapplied the summary judgment standard and improperly made a factual finding. This Court deviated from standards for reviewing summary judgment when it ruled that the record "supports" Cagle's explanation for Lepera's termination. On an appeal from summary judgment, the question is not whether the record supports the movant's stated reason for termination; the question is whether – looking at all of the evidence in the light most favorable to the nonmovant and making all reasonable inferences in the nonmovant's favor – no reasonable factfinder could find otherwise. Mercado v. City of Orlando, 407 F.3d 1152, 1156 (11th Cir. 2005); Harris v. Coweta County, Ga., 406 F.3d 1307, 1312 (11th Cir. 2005). As a legal matter, an appellate court cannot affirm a grant of summary judgment simply because the record "supports" a movant's version of the facts. Although a reasonable jury might agree with Cagle's explanation for Lepera's termination, the record does not compel such a finding. As the EEOC explained in its opening brief, Cagle's has offered shifting and inconsistent reasons for terminating Lepera. This Court did not acknowledge or discuss any of those inconsistent reasons. For example, the Court did not mention that even though Cagle's blamed Lepera for a poor relationship with her clerks, (Vol. 2, R.22, Lepera Dep. at 202), Cagle's also conceded that the opinions of the clerks would not have been grounds to fire her. (Vol. 2, R.22, Habegger Dep. at 69; Vol. 2, R.22, Shaw Dep. at 94). Likewise, the Court did not mention that Cagle's blamed Lepera for a poorly run orientation session, (Vol. 2, R.22, Lepera Dep. at 22), even though the general manager had personally ordered Lepera not to attend that orientation and to spend the day, instead, helping to fire the illegal immigrants whom Moore had erroneously hired. (Vol. 2, R.22, Lepera Dep. at 232-33.) Finally, the Court did not mention Cagle's explanation that it fired Lepera because she, "in essence, quit." (Vol. 2, R.22, Shaw Dep. at 94.) Substantial record evidence discounts this claim, showing, instead, that Lepera repeatedly pleaded with the acting department head to give her more work but that he refused to do so and told her that "if he had anything to do with it [Lepera] would never be a supervisor with Cagle's again." (Vol. 2, R.22, Lepera Dep. at 178-83.) In opting to believe Cagle's new explanation – that it terminated Lepera because of her alleged history of poor performance – this Court overlooked Cagle's contemporaneous disavowal of that very claim. Contrary to Cagle's litigation posture, the evidence shows that the general manager deliberately chose not to consider Lepera's previous performance. The general manager testified that, in evaluating Lepera, he and the acting department head consciously relied only on her present performance and not on any previous failings. (Vol. 2, R.22, Habegger Dep. at 86-87.) This testimony, alone, is enough to cast into doubt Cagle's asserted legitimate nonretaliatory explanation. A jury could also find that Cagle's failure to warn Lepera about her alleged performance problems and give her an opportunity to improve before taking the drastic step of terminating her is further evidence that her performance did not actually motivate the discharge. A reasonable jury could conclude from Cagle's fluid explanations that the company's articulated reasons for firing Lepera are actually a pretext for retaliation. See Conroy v. Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228, 1235 (11th Cir. 2004) (approving closing argument in which plaintiff's lawyer told jury, "If there's an inconsistent reason, then the age maybe had something to do with it); Goldsmith v. City of Atmore, 996 F.2d 1155, 1164 (11th Cir. 1993) ("the implausibility of asserted justifications creates a genuine issue of material fact sufficient to preclude judgment as a matter of law") (quoting Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1564 (11th Cir. 1987)); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 134 (2000) ("In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose."). Based on this record, the question of motivation is one for a jury and not for this Court. CONCLUSION The evidence in this case is not so one-sided as to mandate a judgment for Cagle's on the question of retaliation. For all the reasons stated above and in the EEOC's opening brief, a reasonable jury could infer that Cagle's dismissed Lepera for retaliatory reasons. Accordingly, the EEOC respectfully requests that this Court reconsider its opinion and reinstate the plaintiffs' retaliation claim. Respectfully submitted, JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD 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, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov CERTIFICATE OF SERVICE I, Gail S. Coleman, hereby certify that I filed this petition with the Court by sending, via Federal Express, the original plus three copies and by uploading an electronic copy this 15th day of March, 2006. I also certify that I served one copy of this petition this 15th day of March, 2006, 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 ______________________________ GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7034 Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov Addendum