That ruling said courts must examine complained-of remarks and actions cumulatively and in the context of all the circumstances, not in isolation. Circuit Judge Stanley Marcus, who wrote the January full-court decision in that case, said during June's argument in the Home Depot case that the company could win its argument only if the court were to "pry apart" the manager's arguably non-offensive compliments of the plaintiffs' appearance from the dozens of offensive comments and actions described in the plaintiffs' suit.In the instant case, both plaintiffs, David W. Corbitt and Alexander J. Raya Jr., claimed that human resources manager Leonard Cavaluzzi regularly made both inappropriate remarks and gestures of a strong sexual nature on numerous occasions. However, when they both complained to management a little higher up, 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.
The district court granted summary judgment for Home Depot on the plaintiffs' claims of sexual harassment, retaliation and certain state law tort claims but denied it on the retaliation claim. The 11th Circuit then agreed with the decision to deny summary judgment on the retaliation claim 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.
The case was Corbitt v. Home Depot U.S.A., No. 08-12199.
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 Judge Charles R. Wilson, joined by Senior Judge Emmett Ripley Cox, revised some aspects of the portion of the majority opinion dealing with the sexual harassment claims.
In the July opinion, Wilson had emphasized that many of the instances of which the plaintiffs complained were not sexual in nature. In the December opinion, in contrast, he 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 incidents 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.
In a partial dissent, Senior Judge Patricia C. Fawsett, visiting from the federal district court in Orlando, said the majority opinion failed to allow claims over the type of conduct that reasonable people had come to expect they will be protected from in the workplace.