Two men who are suing Home Depot USA Inc. for alleged sexual harassment and retaliation will have their case heard by the entire U.S. Court of Appeals for the 11th Circuit — and they didn’t even have to ask.
In an order that surprised the plaintiffs’ attorney, the 11th Circuit on March 10 said that it decided on its own to have the whole court rehear the case, which claims that a male human resources manager made numerous, unwanted sexual advances toward the plaintiffs, telling one of them, “You’re the Italian heifer that I like.” Both men allege they were fired in retaliation for complaining about the manager.
Their case, which was filed in December 2006, has already taken many twists and turns at the 11th Circuit.
The court had twice previously affirmed a dismissal of the sexual harassment claims, once in July 2009 and then again in December. Both panels, by votes of 3-0, declined to dismiss the retaliation claim.
In its latest order, the appeals court said that one judge had requested a poll on whether the full court should rehear the case and that a majority of the judges voted for an en banc hearing.
“We don’t know what to make of it. They’ve had trouble on this case,” said Edward Hawkins of the Hawkins Law Firm in Mobile, Ala., who is representing the plaintiffs in Corbitt v. Home Depot.
Hawkins noted that just days before the 11th Circuit’s order, he and Eric Schnapper, a professor at the University of Washington School of Law, had petitioned the Supreme Court to reconsider the dismissal of the sexual harassment claims.
“Then, just out of the blue, they come out with this thing on the 10th [of March],” Hawkins said. “It’s a sign that somebody on that court is having a lot of trouble with this case. This is the third time that they’re going at it.”
Home Depot’s attorney, Cornelius “Neil” Heusel of Jones, Walker, Waechter, Poitevent, Carrère & Denègre in New Orleans, was unavailable for comment.
In court documents, Home Depot has denied that it fired the two men because they complained of sexual harassment and accused Home Depot of failing to address their complaint. Instead, the company said, the men were fired because they used company cell phones for personal use — in violation of company policy — and approved markdowns not consistent with company policy.
The plaintiffs — David Corbitt, who managed a store in Mobile, and Alexander Raya, who managed a store in Pensacola, Fla. — allege that Leonard Cavaluzzi, a regional human resources manager based in Jacksonville, Fla., made numerous unwanted advances toward them. The plaintiffs allege that Cavaluzzi made inappropriate comments over the phone and in person, gave them unwanted massages, rubbed up against them when he hugged them in front of coworkers and asked them inappropriate questions such as whether they wore “boxers or briefs or nothing.”
A federal judge in Alabama dismissed their sexual harassment claims. In twice upholding that dismissal, the 11th Circuit panels concluded that the harassment wasn’t harsh enough to warrant a lawsuit.
Hawkins argues, “That’s up to a jury to decide.”
Tresa Baldas can be contacted at email@example.com.