                                                                      [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                            ___________________________                         FILED
                                                                      U.S. COURT OF APPEALS
                                     No. 05-11213                       ELEVENTH CIRCUIT
                                                                           February 24, 2006
                             ___________________________
                                                                         THOMAS K. KAHN
                                                                               CLERK
                        D.C. Docket No. 03-00219-CV-WDO-05

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

                                                                           Plaintiff-Appellant,

APRIL LEPERA,

                                                                         Intervenor- Plaintiff-
                                                                                   Appellant,

                                             versus

CAGLE’S, INC.,

                                                                       Defendant-Intervenor-
                                                                        Defendant-Appellee.
                           _____________________________

                      Appeals from the United States District Court
                          for the Middle District of Georgia
                         _____________________________

                                    (February 24, 2006)

Before BLACK, HULL and FARRIS*, Circuit Judges.


*Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
PER CURIAM:

      Plaintiffs Equal Employment Opportunity Commission and April Lepera

appeal the district court’s decision granting summary judgment to defendant

Cagle’s, Inc. on their Title VII sexual harassment and retaliation claims. We

review this summary judgment decision de novo. Allen v. Tyson Foods, Inc., 121

F.3d 642, 646 (11th Cir. 1997). We affirm.

      If the allegations are true, Ms. Lepera’s supervisor’s conduct constituted

sexual harassment. His vulgar commentary and disturbing physical violations

were both severe and pervasive. See Johnson v. Booker T. Washington Broad.

Serv., Inc., 234 F.3d 501, 508-509 (11th Cir. 2000) (“When determining whether

harassment is objectively severe and pervasive, courts consider the frequency of

the conduct, the severity of the conduct, whether the conduct is physically

threatening or humiliating, or a mere offensive utterance, and whether the conduct

unreasonably interferes with the employee's job performance.” (internal quotations

and citation omitted)). All the more outrageous was that these acts were

perpetrated by the head of Cagle’s human resources department at its Perry,

Georgia plant.

       Employer liability for a supervisor’s sexual harassment is a two-way street.



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See Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1302 (11th Cit. 2000)

(“workplace discrimination cannot be corrected without the cooperation of the

victims” (internal alteration and citation omitted)). In general, under the

Faragher/Ellerth defense an employer may be relieved of its vicarious liability if

(1) it disseminated an adequate anti-harassment policy and took reasonably prompt

action “designed to stop the harassment, correct its effects on the employee, and

ensure that the harassment does not recur,” and (2) the victimized employee failed

to report her harassment in compliance with the reporting policy. See Walton v.

Johnson & Johnson Servs., Inc., 347 F.3d 1272, 1286, 1288-89 (11th Cir. 2003)

(citing Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998)); Frederick

v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1313-14 (11th Cir. 2001). “[I]n some

cases, the proof will show that the employee’s non-compliance was reasonable

under the circumstances and, in these cases, the defendant cannot satisfy the

second element of the affirmative defense.” Frederick, 246 F.3d at 1314.

      The record indicates that Cagle’s did have an adequate policy and, once

informed of the harassment, it immediately suspended Ms. Lepera’s supervisor

and forced him to permanently resign within days. Although two former

employees told her they believed they were terminated for reporting racial

harassment, and that caused her to fear retaliation if she made a report, it was Ms.

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Lepera’s burden to allege sufficient facts to justify consideration of her

allegations. She failed to do so. See Walton, 347 F.3d at 1290-91 (“. . . absent a

credible threat of retaliation . . . subjective fears of reprisal do not excuse [a]

failure to report . . . alleged harassment.” (internal citations omitted)). Cagle’s

swift response suggests that Ms. Lepera could have been spared much of the

trauma suffered at the hands of her supervisor had she followed the anti-

harassment policy. See id. at 1290.

      Ms. Lepera was terminated sixteen days after making her sexual harassment

complaint. Retaliation claims are evaluated under the McDonnell Douglas burden

shifting framework. Brungart v. Bellsouth Telecomms., Inc., 231 F.3d 791, 798

(11th Cir. 2000). The close temporal proximity between Ms. Lepera’s complaint

and termination establishes a prima facie case of retaliation. See id.; Farley v.

Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999). Cagle’s asserts

that Ms. Lepera was fired for poor job performance, which was discovered during

an investigation of the Perry plant’s human resources department initiated as a

result of her harassment complaint. The record supports this non-retaliatory

justification for her termination.


AFFIRMED



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