David W. Corbitt, who ran a Home Depot store in Mobile, Ala., and Alexander J. Raya Jr., whose store was in Pensacola, Fla., maintained their regional human resources manager, Leonard Cavaluzzi, harassed them from March to mid-November of 2005.
Corbitt and Raya said they were fired after reporting on Cavaluzzi's conduct, including what they said were suggestive comments during store visits and repeated telephone calls, and inappropriately touching, even in the presence of others.
Corbitt and Raya, both married, said Cavaluzzi remarked about liking their looks and suggested they would like sex with a man. They said he asked them to meet with him when he was in town, and Raya said he once remarked "you're the Italian heifer that I like."
Home Depot said the allegations, even if true, did not rise to the level of sexual harassment. U.S. District Judge Callie V.S. Granade of Mobile agreed and granted summary judgment to the Atlanta-based company, which said the men were fired after an investigation revealed that they gave improper markdowns on merchandise.
A panel of the 11th U.S. Circuit Court of Appeals upheld four of five decisions made by Granade, including dismissal of Alabama state law claims of assault and battery, invasion of privacy, and outrage. However, the judges found reasons a jury should hear the claims of retaliation, including Cavaluzzi's role in the firings.
The 2-1 opinion by Circuit Judge Charles R. Wilson noted similar court rulings on sexual harassment allegations by women against men that supervised them.
"The appellants seem to suggest that the fact that the touchings were same-sex makes them somehow more severe. This is not the law," wrote Wilson, joined by Senior Judge Emmett Ripley Cox.
The other member of the panel, U.S. District Judge Patricia C. Fawsett of the Middle District of Florida, thought otherwise on the sexual harassment. She noted that Cavaluzzi's conduct toward the two were so well-known that other Home Depot managers jokingly called Raya "Lenny's bitch."
"She saw the harassment that we saw," said Edward Gordon Hawkins of Mobile, the attorney for Corbitt and Raya.
Hawkins said he was still reading the 86-page opinion and had not decided whether to ask the full 11th Circuit court for a rehearing.
The case is different from other sexual harassment suits he has handled, the lawyer said.
"Normally, when you have a sexual harassment case you have no witnesses. In this case, we had witness after witness," Hawkins said.
Also, he said the investigative report that Home Depot claimed led to the firing contains documents that were dated after the two managers were terminated Dec. 13, 2005.
"Their own document betrays their story," Hawkins said.
A Home Depot spokesman, Ron DeFeo, said the company was pleased that the appeals court affirmed the district court decision on four of the five issues.
"However, we're disappointed that they reversed the decision on one of the claims. We stand by our belief that the lone outstanding claim of retaliation is completely without merit and look forward to defending against the allegation in the appropriate forum," DeFeo said.