The full 11th U.S. Circuit Court of Appeals on Tuesday wrestled with how claims that a Home Depot human resources manager made sexual advances toward two employees fit with the court's January decision -- considered a landmark by some -- that favored plaintiffs in sexual harassment cases.
The rare en banc arguments made on Tuesday concerned David Corbitt and Alexander Raya, two former store managers who say they were fired because they complained about the actions of the human resources manager, Leonard Cavaluzzi.
Among the claims made by the plaintiffs, Corbitt said that Cavaluzzi asked in telephone calls whether Corbitt 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." Raya claimed that at a meeting Cavaluzzi put his arm around Raya's shoulders while putting his hand on Raya's leg under a table where they were seated.
A federal judge in Alabama 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. Three-judge panels of the 11th Circuit have twice looked at the case, each time reviving the retaliation claims but affirming the dismissal of the sexual harassment claims.
But in March, it appeared that some 11th Circuit judges weren't satisfied with the court's dismissal of the sexual harassment claims. In a decision that surprised the plaintiffs attorneys, the court said it would have the whole court rehear the case.
A motivating factor to convene the en banc hearing appeared to be the full court's decision in January in Reeves v. C. H. Robinson Worldwide, 594 F. 3d 798. In that decision, the court ruled that while not all profane or sexual language could support a sexual harassment suit, certain gender-specific words, such as "bitch," "whore" and "cunt," could be actionable even if they weren't used explicitly in reference to the plaintiff.
During Tuesday's en banc argument, the Reeves case was at the top of some judges' minds. In the first question asked, Chief Judge Joel F. Dubina queried the University of Washington School of Law's Eric Schnapper, counsel to the plaintiffs, about what effect Reeves has on the Home Depot case.
Schnapper responded that the two cases are "apples and oranges," because Reeves dealt with profane language, whereas in the Home Depot case Cavaluzzi made "sexual remarks."
Anne Noel Occhialino of the U.S. Equal Employment Opportunity Commission, also arguing on the side of the plaintiffs, later pointed out the court's opinion in Reeves requires profane comments that are interpreted as sexual harassment "must be considered cumulatively, not in isolation."
When Home Depot's counsel, Stephen B. Kinnaird of Paul, Hastings, Janofsky & Walker, argued that some of Cavaluzzi's comments about the store managers' eyes and hair would not be considered offensive, Judge Stanley Marcus, the author of Reeves, reminded him of that case's emphasis on context.
Marcus said that Kinnaird could win the argument only if the court were to "pry apart" Cavaluzzi's non-offensive comments from the dozens of offensive comments and actions described in the plaintiffs' suit, such as rubbing up against the store managers when Cavaluzzi hugged them in front of co-workers. The U.S. Supreme Court has specifically said that it is impermissible to isolate certain comments, Marcus said.
Judge Gerald B. Tjoflat appeared to side with Marcus when he told Kinnaird that the Home Depot lawyer's reasoning resembled an argument that would be made by a criminal defense lawyer who is trying to "explode" the circumstantial evidence presented against his client. That approach can't be used in the Home Depot case, Tjoflat said, because "you've got to tie them all together," referring to the entirety of Cavaluzzi's remarks and actions.
But Judge Charles R. Wilson, who authored the two panel decisions favoring Home Depot on the sexual harassment claims, was more concerned with the 11th Circuit's 1999 ruling in Mendoza v. Borden, 195 F. 3d 1238, than with Reeves.
Last July, Wilson held that many of the instances used in the plaintiffs' complaints were not sexual in nature. In a revised majority opinion issued in December, Wilson said the majority was assuming for purposes of argument that much of the conduct was sexual, but he wrote that a number of the complained-of instances of harassment made by Cavaluzzi involved what many would consider innocent behavior that was not offensive to a reasonable person.
"Flirtation is part of ordinary socializing in the workplace" and doesn't constitute discrimination, wrote Wilson.
The Mendoza decision favored the sexual harassment defendant because the conduct alleged by the plaintiff did not did not reach the level of severe or pervasive conduct sufficient to alter the employee's terms or conditions of employment, according to the majority opinion authored by Judge Frank M. Hull.
On Tuesday, Wilson noted that the alleged victim in the Mendoza case was a "lower level secretary" who was more vulnerable to her superiors than were the Home Depot plaintiffs. The Home Depot plaintiffs, Wilson said, were store managers, "not shrinking violets."
Wilson added that many of the alleged sexual harassment comments made in the Home Depot case were delivered by phone from Cavaluzzi's office in Jacksonville, Fla., hundreds of miles away from Corbitt and Raya, who were working at their stores in Pensacola, Fla., and Mobile, Ala. The harassment in the Mendoza case was made "on a daily basis by direct supervisors," Wilson said.
"Why should we have inconsistent standards in our circuit's jurisprudence?" Wilson asked.
Schnapper was unable to provide a complete response to Wilson's remarks, but Marcus and Hull offered to help.
"The context is different," Marcus said. "Mendoza didn't have the comments you have here [in the Home Depot case]. In this case the context is so critically different."
"[The Home Depot] case is materially different," Hull said. "Whereas Mendoza was mainly involving staring, this case is mainly touching and physical contact."
Hull, however, pointed out two items to Schnapper that appeared to weaken the plaintiffs' case. She noted that the store managers never claimed Cavaluzzi's offensive comments had a negative effect on their job performance and that Corbitt and Raya never told Cavaluzzi his comments were offensive.
During the argument, Occhialino, the EEOC lawyer, got a brief lesson on a different kind of offensive language from Judge J.L. Edmondson, who tweaked her for how she referred to U.S. Supreme Court Justice Antonin Scalia.
Discussing a U.S. Supreme Court decision, Occhialino had referred to the justice as "Scalia," but Edmondson interrupted her to ask if she meant "Justice Scalia." He said that some people might have been confused hearing her speak the justice's name without prefacing his name with his title.
Judge Edward E. Carnes did not participate Tuesday's en banc hearing because of a family medical emergency, but Carnes will be participating in the outcome of the case, said court calendar clerk Joyce Pope. The case is Corbitt v. Home Depot USA, No. 08-12199.