           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                          October 3, 2008

                                     No. 08-30346                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


DEANNA PUEBLA

                                                  Plaintiff - Appellant
v.

DENNY’S, Inc.

                                                  Defendant - Appellee



                     Appeal from the United States District Court
                         for the Eastern District of Louisiana
                                    (06-CV-3189)


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Plaintiff Deanna Puebla brought this suit against her employer, Denny’s
Inc., asserting a hostile work environment claim under Title VII of the Civil
Rights Act of 1964.1 The district court granted summary judgment in favor of




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
       1
           42 U.S.C. § 2000e.
                                       No. 08-30346

Denny’s on the grounds that Denny’s satisfied, as a matter of law, the
Ellerth/Faragher2 affirmative defense. We reverse and remand.
                                               I
       Plaintiff alleges that she was sexually assaulted by her manager twice in
the same day, first after being lured into a back alley and a second time as she
attempted to flee. Plaintiff, after being threatened by the manager not to tell
anyone, went home crying, took a shower, and fell asleep. The next morning,
afraid to return to work, she went to a different Denny’s location at which she
had previously worked. There she reported the incident to two managers.
Denny’s corporate management and the police were contacted immediately. As
a result, the police arrested her manager that day and Denny’s fired him the
following day.
                                              II
       This Court reviews grants of summary judgment de novo, applying the
same standard as does a district court, viewing the evidence in a light most
favorable to the non-movant.3
       The district court assumed without deciding that there was a genuine
issue of material fact regarding the creation of a hostile work environment. It
ruled, instead, that even if a hostile work environment existed, Denny’s
established the Ellerth/Faragher affirmative defense as a matter of law. The
Ellerth/Faragher affirmative defense requires the employer to prove by a
preponderance of the evidence “(a) that the employer exercised reasonable care
to prevent and correct promptly any sexually harassing behavior, and (b) that
the plaintiff employee unreasonably failed to take advantage of any preventive


       2
       Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998); Faragher v. City of
Boca Raton, 524 U.S. 775, 807 (1998).
       3
        Lauderdale v. Tex. Dep’t of Criminal Justice, Institutional Div., 512 F.3d 157, 162 (5th
Cir. 2007).

                                               2
                                        No. 08-30346

or corrective opportunities provided by the employer or to avoid harm
otherwise.”4
       We agree with the district court that Denny’s met its burdens as to prong
one. Denny’s took immediate and permanent corrective action by promptly
firing Plaintiff’s supervisor.
       We disagree, however, that Denny’s has met it burden as to prong two.
The district court ruled that Denny’s proved that Plaintiff unreasonably failed
to take advantage of corrective or preventive measures by not reporting the
incidents on the day they occurred to her immediate supervisor or to corporate
offices.
       To the contrary, we find that Plaintiff’s actions were reasonable. She left
the restaurant on the day of the incident fearing for her safety and for her job
security. Afraid to return to work the next day, she reported the incident to
managers at another location and they immediately contacted Denny’s corporate
offices and the police. Under the circumstances in this case, it would be absurd
to require Plaintiff to have immediately returned to the location of the incident
in order to report the sexual assault to the perpetrating manager.
       Moreover, the purpose of the second prong is to curtail employer liability
in situations where the employee failed “‘to use such means as are reasonable
under the circumstances to avoid or minimize the damages’ that result from
violations of the statute.”5 Here, Plaintiff’s response did not hamper Denny’s
ability to remedy the situation. The damage had been done in an isolated, yet




       4
           Id. at 164 (quoting Faragher, 524 U.S. at 807).
       5
        Faragher, 524 U.S. at 806-07 (“If the plaintiff unreasonably failed to avail herself of
the employer’s preventive or remedial apparatus, she should not recover damages that could
have been avoided if she had done so.”).



                                                3
                                 No. 08-30346

severe and egregious, incident. Plaintiff brought the incident to light in a safe
and effective way and before any additional incidents occurred.
      The district court erred in ruling that Plaintiff’s response was
unreasonable as a matter of law. The district court’s ruling is REVERSED and
this matter is REMANDED for further proceedings as required.




                                       4
