EEOC v. Cagle's, Inc., 11th Cir. Brief as appellant June 20, 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 _________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT __________________________________________________ ERIC S. DREIBAND GAIL S. COLEMAN 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, 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 Blackwood, Vincent J. (Acting Associate General Counsel, EEOC) Cagle's, Inc. (Defendant) Coleman, Gail S. (Attorney, EEOC) Cox, Charles E., Jr. (Attorney for Lepera) Dorminey, Elizabeth K. (Attorney for Cagle's) Dreiband, Eric S. (General Counsel, EEOC) Equal Employment Opportunity Commission (Plaintiff) Jennings, Kathleen J. (Attorney for Cagle's) Keegan, Marcus G. (Attorney, EEOC) Lepera, April (Plaintiff-Intervenor) Oliver, Paul (Attorney for Cagle's) Owens, Wilbur D. (Trial Judge) Royal, S. Robert (Regional Attorney, EEOC) Steckel, Martin H. (Attorney for Cagle's) Stine, James Larry (Attorney for Cagle's) No. 05-12119-B (Consolidated with No. 05-11213-BB) EEOC v. Cagle's, Inc. CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Wheeler, Carolyn L. (Assistant General Counsel, EEOC) Wimberly, Lawson, Steckel, Nelson & Schneider, PC (Attorneys for Cagle's) ______________________________ GAIL S. COLEMAN Attorney EQUAL EMPOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7034 Washington, D.C. 20507 (202) 663-4055 gail.coleman@eeoc.gov STATEMENT REGARDING ORAL ARGUMENT The Equal Employment Opportunity Commission ("EEOC") respectfully requests oral argument. Resolution of this case depends on a thorough understanding of the record evidence. The EEOC believes that oral argument will help to demonstrate the existence of genuine issues of material fact. TABLE OF CONTENTS Certificate of Interested Persons and Corporate Disclosure Statement 1 of 2 Statement Regarding Oral Argument. . . . . . . . . . . . . . . .i Table of Authorities . . . . . . . . . . . . . . . . . . . . . .v Statement of Jurisdiction. . . . . . . . . . . . . . . . . . . .1 Statement of the Issues. . . . . . . . . . . . . . . . . . . . .2 Statement of the Case . . . . . . . . . . . . . . . . . . . . .3 A. Course of Proceedings. . . . . . . . . . . . . . . .3 B. Statement of Facts . . . . . . . . . . . . . . . . .3 1. Sexual Harassment . . . . . . . . . . . . . .5 2. Cagle's Investigation . . . . . . . . . . . . 10 3. Lepera's Termination . . . . . . . . . . . . 11 4. History of the Case . . . . . . . . . . . . . 19 C. District Court's Decision . . . . . . . . . . . . 20 D. Motion for Reconsideration . . . . . . . . . . . . 22 E. Denial of Reconsideration . . . . . . . . . . . . 23 Summary of Argument . . . . . . . . . . . . . . . . . . . . . 23 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 The district court erred in granting summary judgment to Cagle's because it considered only a small portion of the evidence and did not recognize that a reasonable jury could find in favor of the EEOC on both the sexual harassment and retaliation claims. . . . . . . . . . . . . . . . . . . . . . 27 A. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . 27 B. 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 . . . . . . . . . . . . . . . 27 C. The district court unfairly downplayed the evidence in concluding that the complained-of conduct was neither severe nor pervasive . . . . . . . . . 30 D. A reasonable jury could find that Cagle's mishandled Lepera's sexual harassment complaint and is therefore not entitled to an affirmative defense to liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 E. 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 . . . . . . . . . . . . . 37 F. The district court erred in finding no prima facie case of retaliation 38 G. The evidence raises a genuine issue of material fact regarding Cagle's motivation for firing Lepera . . . . . . . . . . . . . . . . . . . . . . . . 39 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43 Certificate of Compliance Certificate of Service TABLE OF AUTHORITIES Cases Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791 (11th Cir. 2000) . . 39 Clark v. UPS, 400 F.3d 341 (6th Cir. 2005) . . . . . . . . . . . . . . . .36 * Clover v. Total Sys. Servs., Inc., 176 F.3d 1346 (11th Cir. 1999) . . . 39 * Conroy v. Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228 (11th Cir. 2004) 39 Dees v. Johnson Controls World Servs., Inc., 168 F.3d 417 (11th Cir. 1999)36 * Faragher v. City of Boca Raton, 524 U.S. 775 (1998). . . . . . . . .33, 36 Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305 (11th Cir. 2001) . . .34 * Goldsmith v. City of Atmore, 996 F.2d 1155 (11th Cir. 1993) . . . . . . 39 Gupta v. Fla. Bd. of Regents, 212 F.3d 571 (11th Cir. 2000) . . . . . . . 31 Harris v. Coweta County, Ga., 406 F.3d 1307 (11th Cir. 2005) . . . . . . .27 * Johnson v. Booker T. Washington Broadcasting Servs., Inc., 234 F.3d 501 (11th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . 32 * Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243 (11th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Mendoza v. Borden, Inc., 195 F.3d 1238 (11th Cir. 1999) (en banc) . . . . 31 Mercado v. City of Orlando, 407 F.3d 1152 (11th Cir. 2005) . . . . . . . .27 Petrolite Corp. v. Baker Hughes, Inc., 96 F.3d 1423 (Fed. Cir. 1996) . . .29 Smith v. Ford Motor Co., 626 F.2d 784 (10th Cir. 1980) . . . . . . . . . .29 Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554 (11th Cir. 1987) . .40 * Walton v. Johnson & Johnson Servs., Inc., 347 F.3d 1272 (11th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . 33, 38 * Wirtz v. Hooper-Holmes Bureau, Inc., 327 F.2d 939 (5th Cir. 1964) . . . 29 Statutes 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. . . . . . . . . . . . . . . . . . . . . . . 1 § 2000e-5(f)(1) . . . . . . . . . . . . . . . . . . . . . . . . .2 § 2000e-5(f)(3) . . . . . . . . . . . . . . . . . . . . . . . . .2 Rules Fed. R. App. P. 4(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . 2 Fed. R. Civ. P. 56(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Fed. R. Civ. P. 56(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 28 U.S. Dist. Ct. (M.D. Ga.) Local Rule 56 . . . . . . . . . . . . . 20, 28, 29 Other Authorities Advisory Comm. Note to 1963 amendment to Fed. R. Civ. P. 56(e) . . . . . . . . . . . . . . . . . . . . . . 29 EEOC Compliance Manual Notice 915.002, "Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors" (June 18, 1999), available at www.eeoc.gov/policy/docs/harassment.html . . . 34, 35, 36 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 _________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT __________________________________________________ STATEMENT OF JURISDICTION The EEOC and plaintiff-intervenor April Lepera sued Cagle's under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging that Cagle's was liable for sexual harassment and retaliation. (Vol. 1, R.1, EEOC's Complaint; Vol. 1, R.9, Lepera's Complaint.) The district court had jurisdiction under 28 U.S.C. § 1331 and 42 U.S.C. § 2000e-5(f)(1) and (3). The district court granted summary judgment to Cagle's on February 1, 2005. (Vol. 3, R.43, Order.) The EEOC moved for reconsideration on February 11, 2005 (Vol. 3, R.46, Motion), and the district court denied the motion on February 15, 2005. (Vol. 3, R.47, Order.) The district court's denial of reconsideration constituted a final judgment for Cagle's which disposed of all parties' claims. Lepera filed a timely notice of appeal on March 11, 2005, pursuant to Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure. (Vol. 3, R.51, Notice of Appeal.) The EEOC filed a timely notice of appeal, also pursuant to Rule 4(a)(1)(B), on April 15, 2005. (Vol. 3, R.53, Notice of Appeal.) This Court has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. With respect to both claims, did the district court erroneously fail to consider all of the record evidence and did it fail to look at the evidence in the light most favorable to the EEOC? 2. With respect to the harassment claim, could a reasonable jury find that the complained-of conduct (which included repeated physical assaults) was severe or pervasive? 3. With respect to the harassment claim, could a reasonable jury conclude that Cagle's was not entitled to an affirmative defense because it mishandled Lepera's complaint and/or because Lepera's delay in complaining about the harassment was reasonable? 4. With respect to the retaliation claim, could a reasonable jury find a casual link between the sexual harassment complaint and Lepera's subsequent termination? 5. With respect to the retaliation claim, could a reasonable jury conclude that Cagle's stated reason for firing Lepera was a pretext for illegal retaliation? STATEMENT OF THE CASE This is an appeal from a final judgment of the district court in favor of Cagle's. A. Course of Proceedings The EEOC filed this Title VII action against Cagle's on July 2, 2003. (Vol. 1, R.1, EEOC's Complaint.) Lepera intervened as a plaintiff on October 15, 2003. (Vol. 1, R.9, Lepera's Complaint.) On February 1, 2005, the district court granted summary judgment to Cagle's. (Vol. 3, R.43, Order.) The EEOC moved for reconsideration, (Vol. 3, R.46, Motion), and the district court denied the motion on February 15, 2005. (Vol. 3, R.47, Order.) B. 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 in September 2000, the general manager began to put together a team of employees. In spring 1999, he hired David Moore as Human Resources Manager. (Vol. 2, R.22, Moore Dep. at 32: Vol. 2, R.22, Habegger Dep. at 13.) Moore, in turn, hired April Lepera in May 2000 as a supervisor in the Human Resources Department. (Vol. 2, R.22, Lepera Dep. at 112.) Lepera was responsible for organizing job fairs and helping to hire employees for the new plant. (Id. at 44.) After the plant began operations, Lepera occasionally fired employees for not showing up and not calling to explain their absence. She also assisted Moore in handling the plant's insurance and attendance issues, entered payroll changes into the computer, helped to run orientations for new employees, and showed new employees how to operate the timekeeping system. (Id. at 45-46, 74-75.) Lepera hired four clerks to help her with these duties. (Id. at 69-70.) Lepera's job did not require her to have any knowledge of the anti- discrimination laws. (Id. at 142.) Moore told her what questions to ask during interviews. (Id.) Her sole responsibility with respect to the employee handbook was making sure that there were enough in stock. (Id. at 150-51.) Lepera enjoyed her job as Human Resources supervisor and testified that she had a good relationship with the clerks in her department. (Id. at 72-73, 84.) The clerks shared information with her about their personal lives because "we had a very good rapport." (Id. at 116-17.) Lepera could not recall a single instance where she had to discipline one of the clerks "because we worked together so well." (Id. at 84.) Although Lepera testified that she was comfortable with Moore's management style, she described him as a micro-manager who wanted to know everything that was going on in his department. (Id. at 69, 76.) She also testified that Moore "wanted to do it his way. He wasn't open for new ideas a lot of the time." (Id. at 77.) On several occasions, chief financial officer Ron Faircloth tried to get Moore to change the way he handled attendance and insurance issues, but Moore refused to change his approach. (Id. at 77-78, 80.) Lepera tried to explain to Moore why Faircloth's suggestions made sense, but Moore "just didn't understand that." (Id. at 78, 81.) Lepera complained to Faircloth that Moore did not listen to her, and several times Faircloth wondered aloud to Lepera why Moore was not correcting the attendance or insurance issues. (Id. at 77-78.) 1. Sexual Harassment Beginning in October 2000, Moore began engaging in conduct that made Lepera uncomfortable. (Id. at 112.) He told "some pretty bad stories," including one about a tampon, one about the size of a bull's penis, and one about a former subordinate named April (like Lepera) who pulled down her pants in front of Moore and asked him to examine a rash on her private parts. (Id. at 126-28.) Lepera said, "I really don't want to hear this, David," but her objections "never stopped him." (Id. at 127.) Moore also told dirty jokes once a week, and when Lepera said that she did not appreciate the jokes, Moore just laughed. (Id. at 112.) In October 2000, when he and Lepera were alone in a construction trailer, Moore pulled Lepera down over his lap, hit her across her rear end, and said he had always wanted to do that. (Id. at 112-13.) Shortly before Christmas, as he stood among a group of employees, Moore tried to grab Lepera's pants and asked, "What do you have on? Do you have on granny panties or do you have on thongs? We have a bet that you have on thongs." Lepera pulled away, Moore grabbed her pants at the belt line, and Lepera broke away. She said, "I don't appreciate you guys talking about whether I have granny panties on or thongs on." (Id. at 113- 15.) Several times, Moore pushed his body up against Lepera's when she went to get coffee in the corner of the break room. (Id. at 123-26.) "He's a pretty big man," Lepera testified, "and he just laid himself up against me." (Id. at 123.) Lepera thought that this behavior was "very nasty and very sexual." (Id. at 125.) In February or March, Moore called Lepera into his office, shut the door, and advised her to dress less conservatively and "show a little more skin." (Id. at 209-10.) Lepera responded, "Well, I'm supposed to present myself in a certain way," and walked out. (Id. at 210.) In March, one of the HR clerks left work to take her son to the doctor and returned wearing a different shirt. Moore said, "She probably went home and got laid, that's why she changed her clothes." (Id. at 122.) Moore often made similar comments about the plant nurse; whenever she called in sick, Moore said, "I guess she got screwed so hard last night that she couldn't walk." (Id. at 131.) Moore also said, on several occasions, "I think I'm going over to the head nurse and get some head." (Id.) Lepera testified that Moore's offensive conduct escalated in March 2001. She said that she was standing in the hall one time that month when she tried to ask Moore a question. Moore said that he had no time to listen and pushed Lepera against the wall so hard that Lepera believed he had bruised her shoulder. (Id. at 129-30.) She was telling this later to one of the HR clerks when Moore walked up behind her and said, "Let me see." He grabbed her sweater and pulled it down, exposing her bra strap. Lepera objected and Moore said, "Well, let's check and see if you have any thongs on today." He grabbed at her pants and pulled them up. (Id. at 130.) A couple of days later, Lepera walked past Moore in the hall and he asked her to come over to him. She declined, and Moore "stepped over and literally grabbed me by the pants again." Moore dragged Lepera over to him, put his arm around her neck, and said, "You know, I could just snap your neck right now like a toothpick." (Id. at 132.) Also in March, Moore asked Lepera to show him a ring that she was wearing. She started to take the ring off her finger and he told her, "Let me see your hand." He pulled Lepera towards him and, without saying a word, licked the top of her hand. (Id. at 163.) On another occasion in March, Moore asked Lepera to lean over so he could see her necklace. He said that he just wanted to touch her, and then he touched her chest above her breasts as if he was grabbing the necklace. (Id. at 164.) Near the end of March, Moore stopped by Lepera's office as he was leaving the plant. He asked Lepera if she wanted a candy bar. Although she said "no," he stood in her doorway, opened up the candy bar, stuck his tongue all the way out, slowly licked the candy bar, and then dropped it on her desk saying, "Here you go." Moore then turned around and left. (Id. at 165.) The last week of March, Lepera was walking out of Moore's office "and he hauled off and smacked me across the rear with some files." (Id. at 109.) The following day, when they passed each other in the hall, "he got his hand and literally smacked my behind." (Id. at 110.) Lepera did not report Moore's conduct immediately because she was afraid that she would lose her job. (Id. at 143, 168.) She knew that shortly after she started working for Cagle's, two employees had lost their jobs within a couple of weeks of complaining about racial discrimination. (Id. at 132-34, 168.) Although she did not know whether their terminations were connected to their complaints, she assumed that they were. (Id. at 134-35.) "I was scared," she testified. "I didn't want to lose my job. I owned a house. I saw what happened to those two young ladies. . . . [W]hen they were terminated they came to say goodbye to me and told me that they were terminated because they had complained." (Id. at 135- 36.) Despite Lepera's reservations, she finally complained to the general manager on April 2, 2001. (Id. at 106.) She testified that she complained because "things had come to a head the week before." Not only had Moore's conduct escalated throughout March, but HR clerk Teresa Daniels had also complained to Lepera about Moore's behavior. (Id. at 106, 109-10.) Lepera testified that Daniels said she was uncomfortable with some of the comments that Moore was making to her and with the way that he was touching her. She added that Daniels had asked not to be left alone with Moore late in the evenings. (Id. at 106.) Lepera's meeting with the general manager, Alan Habegger, lasted for less than an hour. (Id. at 167.) Lepera testified that Habegger was sympathetic and promised to have the situation resolved by the end of the day. (Id. at 167-68.) Habegger told her that he and Cagle's president Jerry Gaddis already had numerous concerns regarding Moore, and he showed Lepera a list of their concerns that had been sitting on his desk. (Id. at 168.) Among the items on his list were immigration, insurance, and attendance issues. (Id. at 169.) Habegger had already counseled Moore about all of these matters. (Vol. 2, R.22, Habegger Dep. at 17-20.) Lepera's complaint, Habegger said, was "the straw that broke the camel's back." (Vol. 2, R.22, Lepera Dep. at 168.) He asked Lepera not to mention her complaint to anyone. (Id. at 176.) Later that day, Habegger escorted Moore out the door. (Id. at 171.) Moore remained away from Cagle's for the next few days because of a family illness. (Vol. 2, R.22, Habegger Dep. at 35.) At some point during his absence, Habegger officially suspended him. (Id.) 2. Cagle's Investigation After Lepera complained to Habegger, Habegger called Jerry Gaddis, Cagle's president, to tell him about Lepera's allegations. (Id. at 27.) Gaddis directed Habegger to investigate. (Id. at 28.) Habegger had never conducted a sexual harassment investigation and was unsure how to proceed. (Id. at 38.) Relying only on his own common sense, (id. at 39), Habegger drafted a letter of concern to Moore and then interviewed Moore and the HR staff. (Id. at 30-31.) Moore denied Lepera's allegations. (Vol. 2, R.22, Moore Dep. at 36; Vol. 2, R.22, Habegger Dep. at 33.) He did tell Habegger that "maybe he should have seen it coming." (Habegger Dep. at 33.) Habegger did not know what Moore meant by this but did not ask. (Id.) After interviewing the HR clerks, Habegger determined that it was "obvious" that no one had witnessed any of the alleged harassment. (Id. at 32.) "I reached no conclusions about Lepera's allegations," he said. (Id.) Habegger testified that the sexual harassment investigation never truly concluded. "At some point," he said, "we addressed Moore on other issues and at that point we stopped." (Id.) Habegger explained that Lepera's complaint "led to an overall review of the HR function and its operations and . . . efficiency." (Id. at 65.) It was this overall review, and not the sexual harassment investigation, that led Cagle's to terminate Moore. (Id. at 65-66.) Habegger fired Moore not because of Lepera's allegations of sexual harassment, but because of Moore's continuing problems with insurance, payroll, employee orientation, and other substantive issues. (Id. at 65-66, 80.) 3. Lepera's Termination Within a few days of Moore's departure, Habegger ordered Lepera to meet with Cagle's attorney. (Vol. 2, R.22, Lepera Dep. at 232.) Lepera had discovered that Moore had hired approximately 100 illegal aliens, and Cagle's needed to fire them quickly. (Id. at 99-102.) Habegger told Lepera that he needed her to meet with the attorney about this issue. (Id. at 232.) Lepera told Habegger that a new- employee orientation would be underway during the time she would be meeting with the attorney, but that the clerks would handle it. She said that if the clerks had any questions or if anything happened, they could come and get her. "[H]e was fine with that," Lepera testified. (Id. at 233.) Lepera spent most of the day with Cagle's attorney, helping to fire the illegal aliens. (Id.) At the end of the day, Habegger complimented her on how smoothly the terminations had gone. (Id. at 236.) The following day, Habegger's tone changed. Lepera testified that he "seemed real distant and a little cocky." (Id. at 237.) He told Lepera, "I have a problem with the way orientation went yesterday." (Id. at 238.) Lepera reminded him that he had ordered her to spend the day with Cagle's attorney rather than in orientation. (Id.) He replied that a manager who had been in the room told him that the HR clerks "had no idea what they were doing and they acted like they had never done orientation before." (Id. at 239.) Lepera pointed out that Habegger had walked in on many orientations and knew that the clerks knew how to run them, but she testified that Habegger continued to believe the manager's account. (Id.) Meanwhile, Cagle's president, Jerry Gaddis, had called O'Neal Shaw, the HR manager from another Cagle's facility, to ask for help. (Vol. 2, R.22, Habegger Dep. at 36.) Gaddis explained to Shaw that Moore had been fired, in part because of sexual harassment allegations, and he asked Shaw to serve as Perry's interim HR manager. (Vol. 2, R.22, Shaw Dep. at 69.) He told Shaw that the HR department was in "total disarray," and he recommended that Shaw speak with Cagle's attorney for more details. (Id. at 69-70.) Shaw called the attorney, who told him both about substantive problems within the HR department and about the fact that a sexual harassment charge had been lodged against Moore. (Id. at 71-72.) Shaw undertook his temporary assignment at Perry with the understanding that he should "go straighten the department out. See what we need and get us on the right track." (Id. at 79.) On Shaw's first day in the plant, he met individually with each of the HR clerks to review everyone's responsibilities. (Vol. 2, R.22, Lepera Dep. at 177.) He saved Lepera for last and had only five minutes to meet with her before he returned to Pine Mountain for the weekend. (Id. at 177-78.) He asked her nothing about herself or her duties, and their meeting was "short and snappy." (Id. at 178.) The following Monday, Randy Cisne started work as a new supervisor in the HR department. (Id. at 179.) Although Moore had hired him before Lepera's sexual harassment complaint, (Vol. 2, R.22, Moore Dep. at 18, 52), Lepera was unaware of this fact and was surprised to see a new supervisor. (Vol. 2, R.22, Lepera Dep. at 179.) When Shaw arrived at the office, Lepera asked him if he had a few minutes to talk to her. Shaw said he did not because he planned to spend the entire day training Cisne. (Id.) Lepera asked Shaw several other times that day if he could talk to her, and each time Shaw said "no." (Id. at 179-80.) Lepera testified that Shaw "was just real short and snappy. He would just not give me the time of day at all." (Id. at 180.) The next day, Lepera called in sick. (Id.) She testified, "I was pretty nauseated. I knew something was going on, I just didn't know what, because of his attitude Friday and his attitude with me Monday and knowing they brought in an HR person. I just knew something. I just had a bad taste in my mouth and I was pretty upset." (Id.) When Lepera returned to work on Wednesday, she tried several times to get Shaw to talk to her. (Id. at 180-81.) He repeatedly told her that he had no time to talk, although she saw him out in the plant at least three times talking to the HR clerks. (Id. at 181-82.) "Not once did he come and get me or involve me in anything," Lepera said. "I didn't understand why he kept saying he didn't have time for me . . . . It just didn't make sense if he was the manager and he wanted to know what was going on in the department. One would think you would go right to the supervisor and find out." (Id.) At 5:00 on Wednesday afternoon, Lepera stood in Shaw's doorway and said, "I don't understand what's going on. You're talking to the clerks, you're talking to Randy, the new HR supervisor. You won't give me the time of day and I don't know why. Can we talk?" (Id. at 182.) Shaw asked Lepera to come in. (Id.) He then explained that although Lepera could keep her office and her salary, she was now "demoted"and would eventually be moved to a different area. (Id. at 174, 182-83.) He told her that he was not going to have any HR supervisors at that time. (Id. at 182.) Lepera testified that Shaw further told her "he did not know what he was going to do with me and that if he had anything to do with it I would never be a supervisor with Cagle's again." (Id. at 183.) He did not explain this comment. (Id.) Shaw then stripped Lepera of all her duties and asked her to give him her keys to the file room and the office. (Id. at 191.) He told her that her sole responsibility would be to keep the bulletin boards organized. (Id. at 174-75, 183-84.) When Lepera told Cisne that her only duty now was to maintain the bulletin boards, Cisne asked her, "Why are you letting them do this to you?" (Id. at 187.) Notwithstanding Shaw's statement that he was not going to have any supervisors, Cisne told Lepera that he had not been demoted. (Id. at 187-88.) To the contrary, he had taken over some of Lepera's duties. (Vol. 2, R.22, Shaw Dep. at 51-52.) Cisne recommended to Lepera that she quit rather than wait to be fired. (Vol. 2, R.22, Lepera Dep. at 188.) The next day, Lepera met with the purchasing manager to request backings for the bulletin boards so that she could start posting things. (Id. at 186.) She testified that there was nothing more she could do with the bulletin boards until those supplies arrived. (Id.) "I did nothing for the rest of the day," she said. "I was not allowed to do anything, just sit at the desk." (Id. at 188.) In the absence of any work, Lepera packed up some of her belongings and took a box home at the end of the day. (Id. at 189.) She testified that she did this because Shaw had told her that he intended to move her out of her large office, presumably into a small cubicle. (Id.) On Friday, Shaw called Lepera from Pine Mountain and asked her about her progress with the bulletin boards. (Id. at 192.) Lepera explained that she had identified some backing, which was going to be ordered on Monday. (Id. at 190, 192.) She also told Shaw that she had arranged to post a sign-up sheet for employees to join a free federal credit union. (Id. at 192-93.) She asked to be given additional responsibilities, but Shaw declined to do so. (Id. at 193.) When Shaw arrived at the plant on Monday, he sent Cisne to tell Lepera that she was no longer responsible for the bulletin boards. (Id. at 194.) Lepera asked whether she was being given another responsibility, but Cisne told her, "Not at this time." (Id.) Later in the day, when she again asked Cisne whether there was something she could do, Cisne said that he would ask Shaw if she could do some filing. (Id. at 195-96.) One hour later, he told Lepera that Shaw had granted permission. (Id. at 196.) Shaw soon learned that Lepera was afraid that she was going to be fired. (Vol. 2, R.22, Shaw Dep. at 30, 89.) He did nothing to reassure her that this was not the case. (Id. at 31, 41, 89.) He testified, instead, that he "did not address that with her at all." (Id. at 89.) Lepera testified that she tried several times to talk to Habegger about her demotion. (Vol. 2, R.22, Lepera Dep. at 197.) When he finally agreed to meet with her, she asked him why she had been demoted. (Id. at 198.) "It's because you messed up the orientation from last Thursday," Habegger said. "That doesn't make any sense," Lepera responded. (Id.) She then told Habegger about her conversation with Shaw and said, "You know me, you've known me for almost a year." (Id.) Habegger said that he and Shaw would get together to discuss her status and that he would get back to her the following day. (Id.) Five days later, Lepera planted herself outside Habegger's office for an hour until Habegger met with her. (Id. at 201.) She asked him what was going on and he said, "Well, I've talked to all of your HR clerks and they all hate you." (Id. at 202.) Lepera was shocked by this statement and did not believe that it was true. (Id.) Habegger continued, "[W]e still haven't decided what we're going to do with you. We just know that your clerks don't like you, you messed up orientation that Thursday, and we'll get back with you . . . ." (Id.) Habegger and Shaw then discussed Lepera's status. They agreed to focus exclusively on her present performance because, they said, they wanted to avoid any link to her sexual harassment complaint. (Vol. 2, R.22, Habegger Dep. at 86- 87.) "I told Shaw," Habegger testified, "you need to make sure you don't rely on the past." (Id. at 87.) With respect to her present performance, they noted that three HR clerks had complained about Lepera's allegedly unprofessional behavior (id. at 67-69),<1> but Habegger attributed her alleged leadership problems to the temporary absence of a full-time Human Resources Director. (Id. at 69.) Shaw also dismissed the significance of the HR clerks' complaints. Their alleged distaste for Lepera, "in and of itself," Shaw said, "would not have been cause for me to recommend termination." (Vol. 2, R.22, Shaw Dep. at 94.) Shaw told Habegger that Lepera "had apparently made the decision that she was not going to work, that she had essentially quit, had closed herself off to employees. . . . She had failed to even make an effort to do anything about [the bulletin board], had gathered her personal belongings in a pasteboard box, and had made the comments that she was just waiting to be fired." (Id. at 48.) Shaw recommended to Habegger that they terminate Lepera. (Id.) He explained that his reason for recommending termination was "[t]he fact that she, in essence, quit." (Id. at 94.) Shortly afterwards, Habegger summoned Lepera to his office. Shaw was waiting for her there as well. (Vol. 2, R.22, Lepera Dep. at 204.) Shaw told Lepera, "We've discussed your employment with Cagle's and as of this moment we are terminating your employment with us." He explained that they did not think she would be a "good fit" for the changes they were making in the HR department. (Id.) Lepera testified that Habegger could not look at her during this conversation. "He literally had his head down the whole time." (Id.) Lepera's termination occurred only 16 days after she complained of sexual harassment. (Id. at 106, 201, 203-04.) 4. History of the Case The EEOC and Lepera sued Cagle's for sexual harassment and retaliatory discharge. (Vol. 1, R.1, EEOC's Complaint; Vol. 1, R.9, Lepera's Complaint.) Cagle's moved for summary judgment. (Vol. 1, R.19, Motion.) Cagle's argued, first, that it was not liable for sexual harassment because Lepera had unreasonably failed to complain in a timely manner and because, once notified, Cagle's suspended the alleged harasser and launched a "full-scale investigation." (Vol. 1, R.20, Memo at 1-2.) Additionally, Cagle's argued that Moore's conduct was neither severe nor pervasive, as required for actionable harassment. (Id. at 11.) Cagle's also argued that Lepera had not been discharged in response to her sexual harassment complaint but, rather, because "the investigation that her harassment complaint triggered revealed serious management problems in the human resources department." (Id. at 2.) C. District Court's Decision The district court granted Cagle's motion for summary judgment. In issuing its ruling, the court did not consider all of the facts in the record. The court observed that "some of the plaintiffs' responses [to Cagle's statement of undisputed, material facts] consisted of no more than a notation that the defendant's statement of a particular fact was ‘disputed.'" (Vol. 3, R.43, Order at 2 n.2.) In light of a local rule requiring a non-moving party to "specifically controvert[ ]" any fact in order to prevent the court from deeming it admitted, U.S. Dist. Ct. (M.D. Ga.) Local Rule 56, the district court limited its consideration to "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.) With respect to sexual harassment, the district court considered only a handful of Lepera's allegations and ruled that these "few instances of unwelcome contact with Moore" did not constitute severe or pervasive behavior. (Id. at 12, 15.) "Granted," the court said, "Moore's behavior was boorish and inappropriate, but courts do not get involved in circumstances of inappropriate conduct, only conduct that results in discrimination." (Id. at 15.) The court also held that Cagle's could not be held liable for Moore's conduct.<2> Without ever mentioning Lepera's fear of retaliation, the court said that Lepera unreasonably delayed in waiting six months to complain about Moore's harassment. (Id. at 19.) The court also said that, once she complained, Cagle's acted appropriately in immediately suspending Moore and then terminating him within a few days. (Id. at 18-19.) Finally, the court rejected any connection between Lepera's sexual harassment complaint and her termination. (Id. at 20.) According to the court, "the evidence shows the claim and the termination were wholly unrelated." (Id.) 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.) Noting that "the record is replete with evidence of mismanagement in the Human Resources Department by Moore and Lepera," the district court concluded that "all of these incidents were more than sufficient to serve as a basis for Lepera's termination." (Id. at 21-22.) D. Motion for Reconsideration The EEOC moved for reconsideration, arguing in part that the district court had failed to consider the entire record. (Vol. 3, R.46, Motion.) Emphasizing the extent of Moore's unwelcome conduct, including his repeated physical contact with Lepera, the EEOC stressed that a reasonable factfinder could conclude that Moore's harassment was severe or pervasive. (Vol. 3, R.46, Memo at 2-7.) The EEOC also argued that Cagle's should be held liable for Moore's conduct. (Id. at 7-11.) Noting that Cagle's initiated a review into Lepera's performance solely because Lepera had complained about Moore, the EEOC argued that Cagle's response to Lepera's sexual harassment complaint was inappropriate. (Id. at 8-10.) The EEOC also noted that Lepera had delayed in making her complaint because she was afraid that she would be terminated – a fear that ultimately proved true. (Id. at 10-11.) Both Cagle's inappropriate response and Lepera's reasonable delay, the EEOC said, should deprive Cagle's of any affirmative defense to liability. The EEOC also challenged the district court's ruling on retaliation, arguing that Shaw's arrival, investigation, and ultimate recommendation to terminate Lepera stemmed directly from Lepera's sexual harassment complaint. (Id. at 11- 12.) Contrary to the district court's representation, the EEOC said, the record did not show that Lepera was responsible for mismanagement of the Human Resources Department. (Id. at 12.) In any event, the EEOC argued, Habegger had testified that Shaw was not to consider Lepera's past performance. (Id. at 13.) A reasonable factfinder, the EEOC concluded, could find Cagle's explanation for Lepera's discharge to be pretextual. (Id. at 12-15.) E. Denial of Reconsideration The district court denied the EEOC's motion to reconsider. (Vol. 3, R.47, Order.) Again, the court noted that it had reached its decision "based on the undisputed, material facts in the record." (Vol. 3, R.47, Order at 2 (emphasis in original).) Without considering any additional evidence, the court concluded, "The plaintiffs did not show that Lepera's work environment was affected in any discriminatory way by Moore's conduct." (Id.) The district court also reaffirmed its conclusion that Cagle's was entitled to an affirmative defense against liability. Again, the court held that Cagle's had taken reasonable care to prevent and promptly correct any harassment, and that Lepera had unreasonably delayed in filing her complaint. (Id. at 2-3.) SUMMARY OF ARGUMENT The district court granted summary judgment to Cagle's because it inexplicably failed to consider all of the record evidence and because it failed to make all reasonable inferences in the plaintiffs' favor. Contrary to fact, the district court said that the plaintiffs had inadequately disputed certain of Cagle's factual statements, and the court therefore deemed an unspecified number of Cagle's facts to be admitted. The court compounded its error by considering only "material, undisputed facts that were not specifically controverted by the plaintiffs and that are supported by the record." Had the court correctly applied the governing summary judgment standard, it would have looked not only at the undisputed facts, but also at the disputed ones – and it would have looked at those disputed facts in the light most favorable to the plaintiffs. Had the court analyzed the record in this way, it would have recognized the existence of genuine issues of material fact precluding summary judgment. The record contains evidence that Moore behaved far more egregiously towards Lepera than the district court acknowledged. The district court did not mention, let alone credit, Lepera's testimony that Moore physically assaulted her on several occasions, grabbing at her pants, pulling down her sweater, and pressing his body against hers in a sexual way. Moore's conduct escalated in frequency and intensity in the month before Lepera complained. A reasonable jury could conclude that Moore's conduct was severe or pervasive sexual harassment, and the district court erred in ruling otherwise. The district court also erred in allowing Cagle's to take advantage of an affirmative defense to liability. The Supreme Court has held, and this Court has recognized, that a defendant may assert the affirmative defense only if it can show both that it exercised reasonable care to prevent and promptly correct any sexual harassment, and that the plaintiff unreasonably failed to avoid harm. Contrary to the district court's conclusion, a reasonable jury could find against Cagle's on both counts. While it is true that Cagle's suspended and then fired Moore within days after Lepera's complaint, a reasonable jury could conclude that the circumstances surrounding Moore's termination would neither deter future harassment nor encourage the filing of future complaints. Cagle's did not fire Moore because he engaged in sexual harassment; it fired him for unrelated, preexisting management problems. Cagle's reached no decision about whether Moore had or had not sexually harassed Lepera. It did not convey a message to its workforce that it would not tolerate sexual harassment. To the contrary, it instructed Lepera not to speak about her allegations. Only two weeks later, Cagle's fired Lepera. A reasonable jury could find that Cagle's response to Lepera's complaint, while superficially satisfactory, was actually calculated to rid the plant of troublemakers (including complainants) and not to prevent or promptly correct sexual harassment. A reasonable jury could also conclude that Cagle's was not entitled to the affirmative defense because Lepera did not act unreasonably in failing to avoid harm. Lepera initially tried to handle Moore's conduct on her own, and she repeatedly told him to stop harassing her. Moore's conduct became most severe in the month before Lepera complained. When it became clear that Lepera could not stop the harassment on her own, she went to the general manager. A reasonable jury could conclude that it was not unreasonable for Lepera to delay making a formal complaint until Moore's conduct escalated. Moreover, a reasonable jury could take into consideration a fact which the district court failed to mention: that Lepera was anxious about filing a formal complaint because she knew that Cagle's had fired two employees within a couple of weeks after they complained about racial discrimination. Given that Cagle's ultimately fired Lepera, too, only 16 days after she complained, a reasonable jury could conclude that Lepera's fear of retaliation was neither speculative nor unreasonable. Finally, a reasonable jury could find genuine issues of material fact regarding retaliation. Contrary to the district court's holding, the plaintiffs established a prima facie case of retaliation because a reasonable jury could find that Lepera's complaint and her subsequent termination were "not wholly unrelated." Indeed, Habegger testified that it was Lepera's complaint which led to his investigation of the human resources department. Additionally, a reasonable jury could conclude that Cagle's stated reason for firing Lepera was a pretext for retaliation. Looking at the facts in the light most favorable to the plaintiffs, a reasonable jury could conclude that Shaw demoted Lepera and took away virtually all of her responsibilities for the sole purpose of orchestrating her dismissal. In light of Lepera's testimony that she repeatedly requested additional work but was turned away, a reasonable jury could disbelieve Cagle's explanation that it fired Lepera because she, "in essence, quit." ARGUMENT The district court erred in granting summary judgment to Cagle's because it considered only a small portion of the evidence and did not recognize that a reasonable jury could find in favor of the EEOC on both the sexual harassment and retaliation claims. A. Standard of Review This Court reviews an award of summary judgment de novo, reviewing all of the record evidence in the light most favorable to the nonmoving parties and making all reasonable inferences in the nonmovants' favor. 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). Summary judgment is appropriate only when the record contains no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Mercado, 407 F.3d at 1156 (citing Fed. R. Civ. P. 56(c)); Harris, 406 F.3d at 1312 (same). B. 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. The district court's evidentiary errors fall into two categories. First, the district court wrongly deemed certain of Cagle's facts to be admitted (the court did not specify which facts it was treating in this manner) because the court claimed, erroneously, that "some of the plaintiffs' responses [to the defendant's statement of undisputed material facts] consisted of no more than a notation that the defendant's statement of a particular fact was ‘disputed.'" (Vol. 3, R.43, Order at 2 n.2.) Second, the district court wrongly limited its inquiry to "material, undisputed facts that were not specifically controverted by the plaintiffs and that are supported by the record." (Id.) With respect to the first mistake, the district court was simply inaccurate in saying that the plaintiffs failed to controvert all of the material facts in Cagle's statement. Contrary to the district court's assertion, not a single one of plaintiffs' responses said only that a fact was "disputed." (Vol. 3, R.41, Response at 2-28.) Most of plaintiffs' responses provided specific objections to Cagle's characterization of the record, and plaintiffs supported all of these objections with page cites. (See, e.g., id. at ¶¶ 7, 8, 12, 13, 16, 17.) A handful of plaintiffs' responses said, "disputed," and then cross-referenced a response to an earlier paragraph, stating that the earlier response was also responsive to the paragraph at issue. (See, e.g., id. at ¶¶ 19, 34, 35.) Nothing in Rule 56(e) of the Federal Rules of Civil Procedure or in Local Rule 56 precludes a non-moving party from cross- referencing an earlier response in this fashion. Finally, a small number of plaintiffs' responses said, "Disputed as alleged. The pages cited to by Defendant do not support Defendant's proposition." (See, e.g., Vol. 3, R.41, Response at ¶¶ 28, 38, 41.) In this circumstance, where the movant's evidence does not establish the absence of a genuine issue of material fact, a non-movant need not present any opposing evidence in order to defeat summary judgment. Advisory Comm. Note to 1963 amendment to Fed. R. Civ. P. 56(e); see also U.S. Dist. Ct. (M.D. Ga.) Local Rule 56 ("All 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.") (emphasis added). Had the district court looked more carefully at plaintiffs' response to Cagle's statement of material facts, it would have recognized that the plaintiffs adequately disputed those facts they did not wish to admit. Plaintiffs' response contains no omissions that can justify the district court's conclusion that certain disputed facts must be deemed admitted. Given the thoroughness of plaintiffs' response to Cagle's statement, the district court's application of Local Rule 56 was an abuse of discretion. See Petrolite Corp. v. Baker Hughes, Inc., 96 F.3d 1423, 1426 (Fed. Cir. 1996) (appellate court may reverse if convinced that district court has "misconstrued its own rule"); Smith v. Ford Motor Co., 626 F.2d 784, 796 (10th Cir. 1980) (same); see also Wirtz v. Hooper-Holmes Bureau, Inc., 327 F.2d 939, 942 (5th Cir. 1964) (local rules should not be enforced where enforcement will result in injustice). The district court also erred by limiting its review of the facts to "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.) Well- established law demands that a court reviewing a motion for summary judgment consider not only the undisputed facts, but also the disputed ones – and must view them in the light most favorable to the non-movant. Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1245 (11th Cir. 2004) (reciting summary judgment standard). Here, because the district court wrongly limited its review to the undisputed facts, it did not consider most of the plaintiffs' evidence of harassment, did not consider Lepera's fear of retaliation, and did not credit Lepera's testimony that Shaw demoted her and barred her from doing anything productive during the time period when he was allegedly assessing her capabilities. Had the court considered all of the evidence in the light most favorable to the plaintiffs, and drawn all reasonable inferences in the plaintiffs' favor, it could not have granted Cagle's motion for summary judgment. C. The district court unfairly downplayed the evidence in concluding that the complained-of conduct was neither severe nor pervasive. The evidence would support a finding that Moore's conduct towards Lepera constituted severe or pervasive – and therefore actionable – sexual harassment. In determining whether harassment is severe or pervasive, a court must consider: (1) the frequency of the conduct, (2) the severity of the conduct, (3) whether the conduct is physically threatening or humiliating, or merely an offensive utterance, and (4) whether the conduct unreasonably interferes with the employee's job performance. Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999) (en banc). A reasonable jury could find for the plaintiffs on all four of these counts. With respect to the frequency, severity, and nature of the harassment, the district court ruled against the plaintiffs because it failed to credit Lepera's testimony. Despite Lepera's detailed claims, the district court considered only a portion of Moore's conduct. But see Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 583 (11th Cir. 2000) (requiring court to "examine the statements and conduct complained of collectively to determine whether they were sufficiently pervasive or severe to constitute sexual harassment"). The court did not even mention Lepera's testimony that Moore repeatedly grabbed at her pants while stating that he wanted to see what kind of underwear she was wearing, repeatedly pushed his body up against hers in a sexual way when she went to get coffee in the corner of the break room, pulled at her sweater to expose her bra strap, touched her chest above her breasts, and laughed at her when she told him that his frequent dirty jokes offended her. (Vol. 2, R.22, Lepera Dep. at 112-15, 123-26, 130, 132, 164.) Contrary to the district court's characterization, (Vol. 3, R.43, Order at 12), there is evidence that Moore engaged in far more than "a few instances of unwelcome contact." Lepera testified that Moore told dirty jokes or off-color stories at least once a week beginning in October 2000, and that his harassment escalated both in frequency and severity in the month leading up to her complaint. (Vol. 2, R.22, Lepera Dep. at 109-10, 112, 129-30, 132, 163-65.) In that last month alone, Moore pushed Lepera violently against a wall, pulled down her sweater, yanked on her pants to see what kind of underwear she was wearing, grabbed at her pants and dragged her towards him, put his arm around her neck and said, "I could just snap your neck right now like a toothpick," licked her hand, touched her chest, smacked her across her rear end with some files, and then smacked her across her rear end with his bare hand. (Id. at 109-10, 129-30, 132, 163-64.) In Johnson v. Booker T. Washington Broadcasting Services, Inc., 234 F.3d 501 (11th Cir. 2000), this Court reversed a grant of summary judgment under similar facts. There, the plaintiff alleged that the harasser pulled his pants tight to reveal an imprint of his private parts, repeatedly attempted to massage her shoulders, rubbed his body against hers, and repeatedly made suggestive comments to her. The Court noted that this conduct interfered with the plaintiff's job performance, as the harasser was her co-host on a radio show and she was unable to get along with him. Id. at 509. The Court concluded that the harassment, which amounted to fifteen separate incidents in four months, was severe or pervasive and was therefore actionable. Id. As in Johnson, the allegations in this case amount to a "continuous barrage of sexual harassment." Id. Particularly in the month before Lepera complained, Moore engaged in repeated and frequent conduct that was physically threatening as well as offensive and demeaning. (Vol. 2, R.22, Lepera Dep. at 109-10, 129- 30, 132, 163-64.) The harassment unreasonably interfered with Lepera's job performance, as it required her to endure physical assaults by her supervisor simply in order to pass through the hallway. (Id. at 129-30, 132.) A reasonable jury could conclude that Moore's conduct was severe or pervasive, and the district court erred in refusing to let this issue go to trial. D. A reasonable jury could find that Cagle's mishandled Lepera's sexual harassment complaint and is therefore not entitled to an affirmative defense to liability. The district court erred in allowing Cagle's to invoke an affirmative defense to liability. The Supreme Court explained in Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998), that an employer may raise an affirmative defense only if it can show both that it exercised reasonable care to prevent and promptly correct any sexual harassment, and that the plaintiff "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." See also Walton v. Johnson & Johnson Servs., Inc., 347 F.3d 1272, 1289 (11th Cir. 2003) ("‘Both elements [of the Faragher defense] must be satisfied for the defendant-employer to avoid liability, and the defendant bears the burden of proof on both elements.'") (quoting Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1313 (11th Cir. 2001)); EEOC Compliance Manual Notice 915.002, "Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors," at sec. V (June 18, 1999) (same), available at www.eeoc.gov/policy/docs/harassment.html. Cagle's cannot satisfy the first prong of the affirmative defense. The record evidence would allow a reasonable jury to conclude that Cagle's never took Lepera's complaint seriously and never sent a clear message to Lepera, Moore, or the rest of the workforce that it would not tolerate sexual harassment. The district court overlooked Lepera's testimony that Habegger had no idea how to conduct a sexual harassment investigation and made no effort to learn. (Vol. 2, R.22, Habegger Dep. at 38.) Despite the existence of a written policy in the employee handbook, Habegger seemed not to know how to proceed. Habegger relied on his own "common sense," and not on any company policy. (Id. at 39.) He began by instructing Lepera to keep quiet about her allegations. (Vol. 2, R.22, Lepera Dep. at 176.) Later, when Moore told him that "maybe he should have seen it coming," Habegger did not ask Moore what he meant. (Vol. 2, R.22, Habegger Dep. at 33.) When the HR clerks told Habegger that they could not confirm Lepera's allegations, Habegger did nothing more. (Id. at 32.) He reached no conclusion about whether Moore had sexually harassed Lepera. Habegger ended the sexual harassment investigation without bringing it to a close. (Id.) Although he did fire Moore, he did so not because he believed Lepera, but because of Moore's pre-existing problems with insurance, payroll, employee orientation, and other substantive issues. (Id. at 65-66, 80.) A reasonable jury could conclude that Cagle's had no workable policy in place for handling sexual harassment complaints. Habegger effectively washed his hands of the issue by firing Moore for unrelated reasons. Although this response did remove the harasser from the workplace, it did not send a message that sexual harassment could, itself, be grounds for punishment including dismissal. Cagle's did not provide any additional training regarding sexual harassment. See EEOC Compliance Manual Notice 915.002, at 27 (employer's duty of care includes ensuring that supervisors understand their responsibilities under anti-harassment policy, which may be accomplished through periodic training that explains the policy and types of conduct that violate it). The overall message that Cagle's sent regarding Lepera's complaint was one of profound indifference. A reasonable Cagle's employee could conclude, based on Cagle's handling of Lepera's complaint, that it would be folly to lodge a complaint of her own. Cagle's entire response to Lepera's complaint consisted of conducting an ad hoc investigation, calling off the investigation before deciding on the truth of Lepera's allegations, firing Moore for unrelated reasons, and then firing Lepera almost immediately thereafter. This is not the kind of employer response that is designed to prevent and promptly correct sexual harassment. The fortuitous coincidence that Cagle's response removed the harasser from the workplace is insufficient to overcome the company's lack of any coherent sexual harassment policy. Cagle's cannot satisfy the first prong of the Faragher defense because, when put to the test, its written policy against sexual harassment proved to be only an empty promise. See Faragher, 524 U.S. at 806 (stating that employer may satisfy its burden if it has "a proven, effective mechanism for reporting and resolving" harassment); Clark v. UPS, 400 F.3d 341, 349 (6th Cir. 2005) ("Prong one of the affirmative defense requires an inquiry that looks beyond the face of a policy to determine whether the policy was effective in practice in reasonably preventing and correcting any harassing behavior."); EEOC Compliance Manual Notice 915.002, at 19-20 (discussing "effective complaint process" requirements); cf. Dees v. Johnson Controls World Servs., Inc., 168 F.3d 417, 422-23 (11th Cir. 1999) (employer could be vicariously liable, although it had anti-harassment policy and took prompt remedial action once plaintiff complained to human resources, because factual issue existed whether defendant had prior notice of harassment but took no action). E. 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. Because Lepera did not unreasonably delay in making her sexual harassment complaint, the district court erred in allowing Cagle's to invoke the Faragher defense. The worst of the harassment occurred only in the month before Lepera complained. (Vol. 2, R.22, Lepera Dep. at 109-10, 129-30, 132, 163-64.) Before March, Lepera repeatedly told Moore to stop harassing her, (id. at 127), but that did not resolve the problem. When Moore's conduct toward Lepera escalated, and then she also learned that another employee felt uncomfortable around him, Lepera went to Habegger. (Id. at 106, 109-10.) A reasonable jury could conclude that because Lepera acted quickly after it became clear that she could not stop Moore on her own, she did not delay unreasonably. The district court did not even mention, let alone consider, Lepera's testimony that she initially sought to deal with Moore on her own because she was afraid that she would lose her job if she reported his conduct. (See Vol. 3, R.43, Order at 19 (omitting any discussion of Lepera's reasons for delay).) Lepera testified that her fear was based on her knowledge of two Cagle's employees who had been fired within a couple of weeks of complaining about racial discrimination. (Vol. 2, R.22, Lepera Dep. at 132-36, 168.) Notwithstanding the language in Cagle's written policy assuring employees that they need not worry about retaliation, both employees had told her that they were fired because of their complaints. (Id. at 135-36.) Lepera's belief that Cagle's had already retaliated against two complainants elevates her fear of reprisal from one that is merely subjective to one that is credible. See Walton, 347 F.3d at 1290-91 (subjective fears of reprisal, standing alone, do not excuse delay in reporting harassment). In assessing the objective reasonableness of Lepera's fear, a jury might consider it noteworthy that Lepera lost her own job only 16 days after complaining about Moore. (Vol. 2, R.22, Lepera Dep. at 106, 201, 203-04.) Although Lepera could not have known for a fact that this would happen, a jury should be permitted to consider what actually happened in determining whether Lepera's fear of that precise outcome was reasonable. Under all the circumstances of this case, a reasonable jury could find that Lepera did not unreasonably delay in complaining within the meaning of Faragher. The district court should not have resolved this question on summary judgment. F. The district court erred in finding no prima facie case of retaliation. The plaintiffs established a prima facie case of retaliation because a reasonable jury could find a causal link between Lepera's sexual harassment complaint and her subsequent termination. For purposes of establishing a prima facie case, the EEOC need only show that the protected activity and the adverse action were "not wholly unrelated." Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1354 (11th Cir. 1999). Here, the EEOC can satisfy this minimal burden because Habegger testified that "[t]he sexual harassment allegation led to an overall review of the human resources function and its operations and the efficiency." (Vol. 2, R.22, Habegger Dep. at 65.) This testimony is direct evidence that, had Lepera not complained, the chain of events leading to her termination would not have been set in motion. The short time span between her complaint and her termination is further evidence that the two events were "not wholly unrelated." See Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000) (close temporal proximity between protected conduct and adverse employment action is generally sufficient evidence of causal connection). G. The evidence raises a genuine issue of material fact regarding Cagle's motivation for firing Lepera. Cagle's has offered shifting and inconsistent reasons for terminating Lepera. 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)). Habegger initially told Lepera that he was concerned about her performance because "your clerks don't like you [and] you messed up orientation that Thursday." (Vol. 2, R.22, Lepera Dep. at 202.) Both Habegger and Shaw, however, subsequently disclaimed reliance on the opinions of the HR clerks. (Vol. 2, R.22, Habegger Dep. at 69; Vol. 2, R.22, Shaw Dep. at 94.) A jury, moreover, could find Habegger's criticism about the orientation to be pretextual because Habegger himself had ordered Lepera not to attend that orientation and to spend the day, instead, helping to fire illegal immigrants. (Vol. 2, R.22, Lepera Dep. at 232-33.) Perhaps because Habegger realized that his asserted justifications made no sense, when he and Shaw met with her he left the explanation to Shaw, who simply told Lepera when he and Habegger fired her that she would not be a "good fit" for the changes they were making in the HR department. (Id. at 204.) Habegger's inability to look at Lepera during the termination meeting, (Vol. 2, R.22, Lepera Dep. at 204), could be viewed as evidence of his discomfort with Shaw's fabricated explanation. Despite telling Lepera she was not a "good fit," in his deposition, Shaw explained that he recommended firing Lepera because she, "in essence, quit." (Vol. 2, R.22, Shaw Dep. at 94.) Lepera, however, testified that Shaw marginalized her from the day he arrived and refused to let her work. (Vol. 2, R.22, Lepera Dep. at 178-82.) Lepera testified that Shaw told her that "if he had anything to do with it I would never be a supervisor with Cagle's again." (Id. at 183.) Within a couple of days, he demoted Lepera (but not the department's newly arrived supervisor), stripped her of all her duties, took her keys to the file room and the office, and said that her sole responsibility would be to keep the bulletin boards organized. (Id. at 174-75, 182-84, 191.) Shaw knew that Lepera believed he was preparing to fire her, but he did nothing to calm her fears. (Vol. 2, R.22, Shaw Dep. at 30, 31, 41, 89.) To the contrary, he prevented her from doing any work at all. (Vol. 2, R.22, Lepera Dep. at 188.) A reasonable jury could conclude that Lepera's inactivity during Shaw's tenure as interim HR director was Shaw's fault and not her own. More recently, in its motion for summary judgment, Cagle's argued that it fired Lepera for "incompetence with regard to the administration of the company's payroll, insurance, and attendance policies." (Vol. 1, R.20, Memo at 22.) This explanation directly conflicts with Habegger's testimony that he and Shaw relied only on Lepera's present performance, and not on previous failings. (Vol. 2, R.22, Habegger Dep. at 86-87.) A jury could not believe both Habegger's testimony and this asserted justification for termination. In considering these shifting and inconsistent explanations for terminating Lepera, a jury could conclude that the changing reasons were offered to cover up a retaliatory motive. A reasonable jury could note that Cagle's told Shaw when it first approached him about serving as interim HR director that Lepera had lodged a sexual harassment complaint against Moore. (Vol. 2, R.22, Shaw Dep. at 69, 71- 72.) Cagle's further advised Shaw to "go straighten the department out. See what we need and get us on the right track." (Id. at 79.) A reasonable jury could conclude that Shaw sought to achieve this goal in part by eliminating Lepera. A reasonable jury could also infer a retaliatory motive from the fact that Shaw and Habegger felt the need to discuss Lepera's harassment complaint in the same conversation in which they considered whether to terminate her. (Vol. 2, R.22, Habegger Dep. at 86-87.) Habegger testified that he and Shaw wanted to be sure that their decision was unrelated to the sexual harassment complaint. (Id.) A jury could believe, instead, that they wanted only to ensure the appearance that their termination decision was unrelated to Lepera's complaint. A reasonable jury could conclude that Habegger and Shaw consciously focused on Lepera's present performance to cover up the real reason for discharge: retaliation. CONCLUSION The district court erred by failing to consider large amounts of evidence in this case and by offering a flawed justification for its refusal to do so. A reasonable jury, looking at all of the evidence and making all reasonable inferences in favor of the plaintiffs, could find Cagle's liable for both sexual harassment and retaliation. Because genuine issues of material fact preclude the award of summary judgment, the EEOC respectfully asks this Court to reverse and remand for trial. Respectfully submitted, ERIC S. DREIBAND General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ______________________________ GAIL S. COLEMAN Attorney EQUAL EMPOYMENT 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 types 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. (must contain no more than 14,000 words, excluding corporate disclosure statement, TOC, TOA, statement of oral argument, addendum, certificates of counsel) ________________________________________ Carolyn L. Wheeler Assistant General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7034 Washington, D.C. 20507 Dated: June 20, 2005 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 20th day of June, 2005. I also certify that I served one copy of this brief this 20th day of June, 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 Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7034 Washington, D.C. 20507 ************************************* <> <1> Lepera denies these allegations in their entirety. (Vol. 2, R.22, Lepera Dep. at 212, 218-19, 230-31.) <2> The district court spent several pages concluding that the harassment in this case did not culminate in a tangible employment action. (Vol. 3, R.43, Order, at 15-18.) Neither the EEOC nor Lepera had argued otherwise. Presumably, the district court was responding to a section in Cagle’s brief in support of its motion for summary judgment in which it hypothesized that the plaintiffs might make this argument. (Vol. 1, R.20, Memo at 14-15.)