Male Employees' Sex Harassment Case Settles

The Home Depot case that was settled concerned Mobile, AL, store manager David W. Corbitt, who contended that Jacksonville, FL-based regional human resources manager Leonard 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 said Cavaluzzi told him he knew Corbitt was not gay, but suggested he would “like it.”

Another Plaintiff

The other plaintiff was a store manager in Pensacola, FL, Alexander J. Raya Jr. He said Cavaluzzi would ask in telephone calls what Raya 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.”

The plaintiffs also contended that during in-person meetings, Cavaluzzi massaged their necks and shoulders, played with their hair and hugged them in front of other managers. In December 2005, after they said they had complained to various managers about Cavaluzzi's actions, Corbitt and Raya were fired from their jobs at Home Depot. The company said the harassment stopped as soon as the plaintiffs formally complained, but that the two were terminated for violating company policy related to discounting.

Rulings

In March 2008, U.S. District Judge Callie V.S. Granade of Mobile denied Home Depot's request for summary judgment on some claims, but granted summary judgment to the company on the plaintiffs' claims of sexual harassment, retaliation and certain state law tort claims.

A year ago, a panel of the Eleventh Circuit issued a ruling on the plaintiffs' appeal in which all three judges agreed that the claims of retaliation should survive, but 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. After nearly five months went by with no party filing a motion for rehearing by the panel or full court, the panel issued a new majority opinion in December. The outcome was the same, but two judges revised some aspects of the portion of the majority opinion dealing with the sexual harassment claims.

The July opinion had emphasized that many of the instances of which the plaintiffs complained were not sexual in nature. The December opinion (with a partial dissent), in contrast, said the majority was assuming for purposes of argument that much of the conduct was sexual, but that a number of the complained-of incidents involved what many would consider innocent behavior that was not offensive to a reasonable person.

In December, the plaintiffs' attorney said his clients would not be seeking review of the decision, noting the ruling allowed them to go forward on a retaliation claim. But he acknowledged at the time that he had been encouraged by others in the plaintiffs' bar to appeal further.

In March, Eric Schnapper of the University of Washington, a law professor who has won several cases at the U.S. Supreme Court, filed a petition with the Supreme Court on the plaintiffs' behalf. Within a week, the Eleventh Circuit issued an order sending the case down a different path: It decided to take up the case as a full court, meaning the December panel opinion was vacated.

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

Lawyers watching a sexual harassment case that tested the limits of acceptable workplace behavior will not get to hear what the full Eleventh U.S. Circuit Court of Appeals thinks of the matter. The case against Home Depot, heard in a rare en banc session by the full appeals court bench in June, has been settled. The court dismissed the appeal following a joint motion by the parties. Corbitt v. Home Depot U.S.A., No. 08-12199.

Background

The case, in which two male employees had claimed that a male manager made inappropriate sexual overtures to them, had taken a long and unusual route to a full court hearing. The court's announcement of the en banc argument and comments at the June oral argument indicated that the judges were wrestling with how to apply a January decision by the full court in another sexual harassment case. In that case, the court ruled that while not all profane or sexual language could support a sexual harassment suit, certain gender-specific words, such as “bitch” or “whore,” could be actionable even when they were not used explicitly in reference to the plaintiff. That ruling said courts must examine complained-of remarks and actions cumulatively and in the context.

The Home Depot case that was settled concerned Mobile, AL, store manager David W. Corbitt, who contended that Jacksonville, FL-based regional human resources manager Leonard 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 said Cavaluzzi told him he knew Corbitt was not gay, but suggested he would “like it.”

Another Plaintiff

The other plaintiff was a store manager in Pensacola, FL, Alexander J. Raya Jr. He said Cavaluzzi would ask in telephone calls what Raya 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.”

The plaintiffs also contended that during in-person meetings, Cavaluzzi massaged their necks and shoulders, played with their hair and hugged them in front of other managers. In December 2005, after they said they had complained to various managers about Cavaluzzi's actions, Corbitt and Raya were fired from their jobs at Home Depot. The company said the harassment stopped as soon as the plaintiffs formally complained, but that the two were terminated for violating company policy related to discounting.

Rulings

In March 2008, U.S. District Judge Callie V.S. Granade of Mobile denied Home Depot's request for summary judgment on some claims, but granted summary judgment to the company on the plaintiffs' claims of sexual harassment, retaliation and certain state law tort claims.

A year ago, a panel of the Eleventh Circuit issued a ruling on the plaintiffs' appeal in which all three judges agreed that the claims of retaliation should survive, but 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. After nearly five months went by with no party filing a motion for rehearing by the panel or full court, the panel issued a new majority opinion in December. The outcome was the same, but two judges revised some aspects of the portion of the majority opinion dealing with the sexual harassment claims.

The July opinion had emphasized that many of the instances of which the plaintiffs complained were not sexual in nature. The December opinion (with a partial dissent), in contrast, said the majority was assuming for purposes of argument that much of the conduct was sexual, but that a number of the complained-of incidents involved what many would consider innocent behavior that was not offensive to a reasonable person.

In December, the plaintiffs' attorney said his clients would not be seeking review of the decision, noting the ruling allowed them to go forward on a retaliation claim. But he acknowledged at the time that he had been encouraged by others in the plaintiffs' bar to appeal further.

In March, Eric Schnapper of the University of Washington, a law professor who has won several cases at the U.S. Supreme Court, filed a petition with the Supreme Court on the plaintiffs' behalf. Within a week, the Eleventh Circuit issued an order sending the case down a different path: It decided to take up the case as a full court, meaning the December panel opinion was vacated.

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