Eleventh Circuit Nixes Sex Harassment Claims

The panel majority issued a similar ruling in the case in July, before issuing a revised majority opinion in December, which suggests that at least one of their colleagues may have expressed concerns about the earlier opinion. But the plaintiffs' lawyer, Edward G. Hawkins of Mobile, AL, said he will not ask for further court review of the sexual harassment matter, as the Eleventh Circuit opinion allows his clients to go forward on a retaliation claim.

The case involves allegations about the behavior of Leonard Cavaluzzi, a regional human resources manager for Home Depot based in Jacksonville, FL, during the time in question. The plaintiffs in the case are David Corbitt, who was a Home Depot store manager in Mobile, and Alexander Raya, who managed a store in Pensacola, FL. The plaintiffs contend that Cavaluzzi began making inappropriate sexual overtures to them within a month of being transferred to their region in March 2005.

As set forth in court papers, Corbitt contends that Cavaluzzi made sexual statements in regular telephone calls that started out as business-related but became increasingly personal. Corbitt says Cavaluzzi said he “could not stop thinking about” Corbitt, called Corbitt “small” and “cute,” and said he liked Corbitt's “baby face” and dark tan. Cavaluzzi allegedly asked Corbitt if he wore “boxers or briefs or nothing,” whether he shaved his body, and if he colored his hair, remarking on what color Corbitt's hair must be “down there, too.” Corbitt says Cavaluzzi told him he knew Corbitt was not gay but he would “like it.”

Similar for Other Plaintiff

Raya says in telephone calls Cavaluzzi would ask what he was wearing and if he wanted to meet for drinks. He allegedly told Raya that the latter “always dressed so nice,” was “cute,” and had beautiful hair. He purportedly told Raya he liked his green eyes and said “you're the Italian heifer that I like.”

Inappropriate Touching

The plaintiffs also contend that during in-person meetings Cavaluzzi massaged their necks and shoulders, played with their hair and hugged them in front of other managers. Corbitt contends that in one incident he was working in a store training room when Cavaluzzi put one of his hands on Corbitt's shoulder and rubbed Corbitt's stomach with the other. Raya testified that at a Pensacola store grand opening, Cavaluzzi gave Raya a hug during which Cavaluzzi's body was touching Raya's “privates.” Raya contends that in another incident Cavaluzzi put his arm around Raya's shoulders while putting his hand on Raya's leg under a table where they were seated.

Filing Suit

In December 2005, after they say they had complained to various managers about Cavaluzzi's actions, Corbitt and Raya were fired from their jobs at Home Depot. The company says the harassment stopped as soon as the plaintiffs formally complained, but that the two were terminated for violating company policy related to discounting.

Corbitt and Raya filed suit against Home Depot in the Southern District of Alabama, which denied the company's request for summary judgment as to some of the plaintiffs' claims ' negligent training, supervision and retention ' and the parties settled those claims. But the district judge granted Home Depot's summary judgment request as to the plaintiffs' claims of sexual harassment, retaliation for complaining about harassment and state law torts of assault and battery, outrage and invasion of privacy. The plaintiffs appealed to the Eleventh Circuit the part of the ruling that granted Home Depot summary judgment.

In July, the panel issued its ruling. All three judges agreed that the plaintiffs' claims of retaliation should survive to be decided by a jury. But they divided over the sexual harassment claims and some of the state law claims, with the majority affirming the grant of summary judgment on the sexual harassment claims.

Alyson M. Palmer is a reporter for the Fulton County Daily Report, an ALM sister publication of this newsletter.

Late last year, the Eleventh U.S. Circuit Court of Appeals issued an opinion that the lawyer for the plaintiffs in the case says virtually eliminates sexual harassment claims in the federal courts for Georgia, Alabama and Florida.

That may be an overstatement, but the dissent of a visiting district court judge from Florida suggests that the opinion of the panel fails to allow claims over the sort of conduct that reasonable people have come to expect they will be protected from in the workplace. The panel ruled that two former male Home Depot employees do not have a sexual harassment claim against the company, despite evidence that a male manager made comments suggesting he was sexually attracted to them and touched them in arguably inappropriate ways.

Background

The panel majority issued a similar ruling in the case in July, before issuing a revised majority opinion in December, which suggests that at least one of their colleagues may have expressed concerns about the earlier opinion. But the plaintiffs' lawyer, Edward G. Hawkins of Mobile, AL, said he will not ask for further court review of the sexual harassment matter, as the Eleventh Circuit opinion allows his clients to go forward on a retaliation claim.

The case involves allegations about the behavior of Leonard Cavaluzzi, a regional human resources manager for Home Depot based in Jacksonville, FL, during the time in question. The plaintiffs in the case are David Corbitt, who was a Home Depot store manager in Mobile, and Alexander Raya, who managed a store in Pensacola, FL. The plaintiffs contend that Cavaluzzi began making inappropriate sexual overtures to them within a month of being transferred to their region in March 2005.

As set forth in court papers, Corbitt contends that Cavaluzzi made sexual statements in regular telephone calls that started out as business-related but became increasingly personal. Corbitt says Cavaluzzi said he “could not stop thinking about” Corbitt, called Corbitt “small” and “cute,” and said he liked Corbitt's “baby face” and dark tan. Cavaluzzi allegedly asked Corbitt if he wore “boxers or briefs or nothing,” whether he shaved his body, and if he colored his hair, remarking on what color Corbitt's hair must be “down there, too.” Corbitt says Cavaluzzi told him he knew Corbitt was not gay but he would “like it.”

Similar for Other Plaintiff

Raya says in telephone calls Cavaluzzi would ask what he was wearing and if he wanted to meet for drinks. He allegedly told Raya that the latter “always dressed so nice,” was “cute,” and had beautiful hair. He purportedly told Raya he liked his green eyes and said “you're the Italian heifer that I like.”

Inappropriate Touching

The plaintiffs also contend that during in-person meetings Cavaluzzi massaged their necks and shoulders, played with their hair and hugged them in front of other managers. Corbitt contends that in one incident he was working in a store training room when Cavaluzzi put one of his hands on Corbitt's shoulder and rubbed Corbitt's stomach with the other. Raya testified that at a Pensacola store grand opening, Cavaluzzi gave Raya a hug during which Cavaluzzi's body was touching Raya's “privates.” Raya contends that in another incident Cavaluzzi put his arm around Raya's shoulders while putting his hand on Raya's leg under a table where they were seated.

Filing Suit

In December 2005, after they say they had complained to various managers about Cavaluzzi's actions, Corbitt and Raya were fired from their jobs at Home Depot. The company says the harassment stopped as soon as the plaintiffs formally complained, but that the two were terminated for violating company policy related to discounting.

Corbitt and Raya filed suit against Home Depot in the Southern District of Alabama, which denied the company's request for summary judgment as to some of the plaintiffs' claims ' negligent training, supervision and retention ' and the parties settled those claims. But the district judge granted Home Depot's summary judgment request as to the plaintiffs' claims of sexual harassment, retaliation for complaining about harassment and state law torts of assault and battery, outrage and invasion of privacy. The plaintiffs appealed to the Eleventh Circuit the part of the ruling that granted Home Depot summary judgment.

In July, the panel issued its ruling. All three judges agreed that the plaintiffs' claims of retaliation should survive to be decided by a jury. But they divided over the sexual harassment claims and some of the state law claims, with the majority affirming the grant of summary judgment on the sexual harassment claims.

Alyson M. Palmer is a reporter for the Fulton County Daily Report, an ALM sister publication of this newsletter.