Corbitt v. Home Depot U.S.A., Inc.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
July 10, 2009
No. 08-12199 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 06-00860-CV-CG-M

DAVID W. CORBITT,
ALEXANDER J. RAYA, JR.,

Plaintiffs-Appellants,

versus

HOME DEPOT U.S.A., INC.,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Southern District of Alabama
________________________

(July 10, 2009)

Before WILSON and COX, Circuit Judges, and FAWSETT,* District Judge.

________________________
*
Honorable Patricia C. Fawsett, United States District Court for the Middle District of
Florida, sitting by designation.
WILSON, Circuit Judge:

The plaintiffs, David Corbitt and Alexander Raya (collectively, “Appellants”),

appeal the entry of summary judgment in favor of the defendant, Home Depot U.S.A.,

Inc. (“Home Depot”), on their sexual harassment and retaliation claims under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17, and their state

law claims of assault and battery, outrage, and invasion of privacy. This action arose

from the Appellants’ employment with and termination from Home Depot. The

Appellants asserted claims of sexual harassment and retaliation in violation of Title

VII, claiming that Home Depot’s regional human resources manager, Leonard

Cavaluzzi, sexually harassed them and subjected them to a hostile work environment

from approximately March of 2005 until mid-November of 2005, and that they were

terminated on December 13, 2005 in retaliation for reporting the alleged sexual

harassment. Home Depot denied their sexual harassment claim and stated that even

if the alleged conduct occurred, the allegations did not rise to the level of sexual

harassment under Title VII and did not constitute the intentional torts of assault and

battery, outrage, or invasion of privacy. According to Home Depot, the Appellants

were lawfully terminated for repeated violations of Home Depot’s policies.

2
 In granting Home Depot’s motion in part,1 the district court concluded that the

Appellants did not demonstrate that they were subjected to objectively severe or

pervasive harassment so as to constitute a hostile work environment. In the

alternative, the district court found that Home Depot exercised reasonable care to

prevent and correct any sexually harassing behavior and that the Appellants

unreasonably failed to take advantage of these corrective measures or to avoid any

harm.

In addition, the Appellants challenge the district court’s conclusion that they

did not demonstrate retaliation because they failed to provide sufficient evidence of

a causal connection between their complaints of sexual harassment and their eventual

terminations. They also contend that the district court erred in finding that they did

not provide evidence showing that Home Depot’s asserted reasons for terminating

their employment were merely pretext for retaliation.

Finally, the Appellants assert that the district court erroneously found that they

failed to demonstrate conduct sufficient to constitute the state law torts of outrage or

invasion of privacy and that they had failed to show a proper basis for Home Depot’s

liability for the intentional torts of one of its employees.

1
The motion was granted in part and denied in part. The parties have since settled the
claims for which summary judgment was denied: negligent training, supervision, and retention.
Therefore, these claims are not the subject of the present appeal.

3
 After reviewing the record and hearing the arguments of the parties, we affirm

summary judgment on the claims of hostile work environment sexual harassment,

assault and battery, invasion of privacy, and outrage, and reverse on the claim of

retaliation.

I. BACKGROUND

A. Facts2

A detailed recitation of the facts is necessary to properly analyze the various

issues.

1. Cavaluzzi’s Transfer to Corbitt and Raya’s Region

In March of 2005, Leonard “Lenny” Cavaluzzi, a regional human resources

manager for Home Depot, was transferred to a new region of Home Depot. At the

time of this transfer, Cavaluzzi reported directly to Lisa Keglovitz, the regional

human resources director, who remained his direct supervisor throughout the events

material to this case. Cavaluzzi acted as a business partner to the district managers

in his new region, including district manager Leon McLaughlin. Cavaluzzi was based

in Jacksonville, Florida during this time.

2
These facts are stated for purposes of reviewing the district court’s grant of summary
judgment and should not be construed as findings of fact. In setting forth these facts, we bear in
mind that a court deciding a motion for summary judgment must consider all inferences drawn from
the underlying facts in the light most favorable to the party opposing the motion and must resolve
all reasonable doubts against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255,
106 S. Ct. 2505, 2513 (1986).

4
 Within the month of his transfer, Cavaluzzi purportedly began making

inappropriate sexual overtures to two store managers at Home Depot locations within

his region in Mobile, Alabama and Pensacola, Florida: David “Dave” Corbitt and

Alexander “Alex” Raya. Cavaluzzi allegedly made repeated telephone calls of a

sexual nature and inappropriately touched Corbitt and Raya. The calls ranged from

two to three times a week to twelve times a week from March to November of 2005.

2. Allegations of Harassment

a. Telephone Calls

Corbitt was the store manager for a Home Depot location in Mobile, Alabama.

Raya was the store manager for a Home Depot location in Pensacola, Florida. Corbitt

and Raya assert that both Cavaluzzi and McLaughlin were their supervisors.

Cavaluzzi’s initial telephone call to Corbitt occurred around the third week of

March when Corbitt was in his store manager’s office with two employees.

Cavaluzzi called, and Corbitt answered on the speaker phone. Cavaluzzi invited

Corbitt to be with him at his hotel, while Cavaluzzi was in Mobile the next week.

Corbitt alleges that telephone calls occurred every week for approximately nine

months from March until after the middle of November. According to Corbitt, at first

Cavaluzzi’s telephone calls began as business-related and then would devolve into

statements of a sexual nature, but the calls soon became entirely personal. For

5
instance, Cavaluzzi stated that Corbitt was not Cavaluzzi’s “usual type,” but he

“could not stop thinking about” Corbitt; that Cavaluzzi knew Corbitt was not gay, but

Cavaluzzi could show Corbitt how, and he would “like it;” that Cavaluzzi liked

Corbitt’s “baby face;” and that Corbitt was “small and cute.” In addition, Cavaluzzi

said he liked how small Corbitt was and the way he dressed, that he liked Corbitt’s

dark tan, and asked if Corbitt “wore boxers or briefs or nothing.” He asked if Corbitt

colored his hair and remarked that it must be Corbitt’s “natural color down there too.”

He asked whether Corbitt shaved his full body, stating that it looked as though

Corbitt shaved his arms. He repeatedly asked Corbitt if he “wasn’t bored with the

same woman,” referring to Corbitt’s wife, asked if Corbitt and his wife “swing,” and

told Corbitt to visit specified gay websites, saying Corbitt “should look at them” so

Corbitt “could see what he is talking about.”

At the same time, Cavaluzzi was allegedly engaging in similar behavior to

Raya. Cavaluzzi’s telephone calls to Raya also began in the third week of March.

The telephone calls occurred several times a week from March until November of

2005. Cavaluzzi called Raya several times a week, asking such things as what Raya

was wearing and if he was wearing the pants that Cavaluzzi liked. Cavaluzzi stated

that Raya “always dressed so nice” and “was cute.” Cavaluzzi would tell Raya that

he was going to be in town and asked when Raya was working and getting off work.

6
He asked whether Raya was happily married, remarked that Raya’s hair was beautiful,

and stated that he liked Raya’s green eyes. He told Raya, “I like the rough look,” and

“I like your temper.” He also told Raya, “you’re the Italian heifer that I like.” He

repeatedly asked Raya to meet him for drinks.

b. Physical Contact

Corbitt and Raya stated that they were subjected to unwanted physical

touchings by Cavaluzzi. Around the fourth week of March, there was a round table

Home Depot meeting at the Hampton Inn in Pensacola of all store managers and

human resources managers in the district. Store human resources manager Donna

Calhoun saw Cavaluzzi touch both Corbitt and Raya, going from one to the other.

Cavaluzzi walked into the room and massaged their necks and shoulders, made

comments about their hair, played with their hair, and hugged Corbitt and Raya in

front of the store managers and human resources managers of the district. Both men

moved away from Cavaluzzi. According to Corbitt, McLaughlin and others observed

this incident.

That evening, Cavaluzzi called Corbitt at home and asked Corbitt to bring

assistant manager files to Cavaluzzi at the Pensacola Home Depot. When Corbitt

pulled into the parking lot, Cavaluzzi reached into Corbitt’s car and began massaging

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Corbitt’s neck and shoulders. Cavaluzzi invited Corbitt to join him at his hotel for

a couple of drinks. Corbitt refused.

Cavaluzzi’s behavior offended and humiliated Corbitt, but he acquiesced

because Cavaluzzi was his boss, and Cavaluzzi had a reputation for being vindictive.

Corbitt did not feel that he had to specifically tell Cavaluzzi to stop touching him

because Cavaluzzi was his superior and should have known that this was wrong.

Around the same time, Raya was in the training room at the Daphne, Alabama

store seated at a table with another employee, when Cavaluzzi came into the room.

Cavaluzzi sat down next to Raya, put his arm on Raya’s shoulder “like [Cavaluzzi]

was [Raya’s] best friend in the world” and put his hand on Raya’s thigh under the

table. Raya moved his chair away from Cavaluzzi and stood up. Cavaluzzi then

stood for a few seconds and stated, “I just wanted to let you know I’m here” and

walked out of the room.

Within a month after this incident, Raya attended a training meeting at the

Pensacola Hampton Inn. In front of nine or ten store managers, Cavaluzzi came up

behind Raya and began running his fingers through Raya’s hair.

In June, Home Depot held a grand opening at the new Pensacola store, at which

Raya made a presentation in front of approximately 200 contractors. After

completing his speech, as Raya walked down from the podium, McLaughlin extended

8
his hand to congratulate Raya. Before Raya could shake McLaughlin’s hand,

Cavaluzzi moved in front of McLaughlin and told Raya that he was proud of him.

Cavaluzzi then gave Raya a hug and massaged Raya’s back. Raya testified that

Cavaluzzi pressed his whole body against Raya, such that Cavaluzzi’s body was

touching Raya’s “privates” during the hug.

In August, Corbitt was working alone in the training room of the Montlimar

store when Cavaluzzi “snuck up” behind him, put one of his hands on Corbitt’s

shoulder, and rubbed Corbitt’s stomach with the other. Corbitt pulled away.

At an August meeting, Cavaluzzi massaged Raya’s neck and shoulders while

commenting that Raya was in good shape and felt muscular and trim. He

complimented Raya’s physical build and asked Raya if he worked out. Raya walked

out. This was the last physical contact between Cavaluzzi and Raya.

At a November meeting, when Corbitt entered the room, he stuck out his hand

to shake hands with Cavaluzzi, but Cavaluzzi pushed Corbitt’s hand to the side and

instead gave Corbitt a hug. Before Corbitt could pull away, Cavaluzzi started rubbing

Corbitt’s back, neck, head, and shoulders. When Corbitt pulled away from Cavaluzzi,

Cavaluzzi asked, “How are you doing?” Corbitt responded that he was cold, and

Cavaluzzi said, “Maybe we should cuddle later.” This was the last physical contact

between Cavaluzzi and Corbitt.

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 3. Home Depot’s Harassment and Non-Discrimination Policy

Home Depot has a harassment and non-discrimination policy which provides

the following:

Introduction

Every Home Depot associate should be able to work in an environment
that is free of discrimination and harassment. In order for such an
environment to exist, each of us must play a role. Management must
take a proactive role in setting and enforcing appropriate standards of
behavior, and all associates must behave in accordance with those
standards.

Policy

Home Depot is committed to ensuring that associates work in an
environment of mutual respect that is free of harassment and
discrimination.

***

Home Depot does not tolerate harassment of any kind of the basis of
race, color, sex (gender), age, religion, national origin, sexual
orientation, disability, protected veteran status, or any other basis
prohibited under applicable law.

Home Depot defines sexual harassment as any unwelcome or unsolicited
behavior of a sexual nature that denies an associate the right to a non-
offensive, work atmosphere.

The policy establishes the following procedures for reporting harassment:

If an associate . . . then the associate should . . .

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 • [b]elieves he or she is the victim of • [t]ell the person to stop the conduct
discrimination or is being harassed or immediately and contact a member of
exposed to conduct that is offensive[,] management.
• [d]oes not feel comfortable discussing • [c]ontact the Store Manager, District
the problem with a particular Manager, Store Human Resource[s]
manager[,] Manager, Division Human Resources
Manager, Employment Practices
Manager, or HR Vice President.
• [w]ants to report harassment or • [c]all the Aware Line at
discrimination but wants to remain 1-800-286-4909 to report harassment
anonymous[,] and discrimination.3

If a manager receives a complaint, becomes aware of or even suspects a
violation of the Company’s harassment and non-discrimination policy, that
manager has a responsibility to consult promptly with a member of Human
Resources Management for a proposed course of action. Anyone who
condones or fails to take appropriate action is violating Home Depot’s
harassment and non-discrimination policy.

When Managers/Supervisors Fail to Comply with These Requirements

These requirements must be followed. Managers/supervisors who
deviate from the requirements are subject to discipline up to and
including termination. Exceptions to this SOP must be approved by the
Human Resources Vice President (or equivalent) of the business unit.

The record reflects that both Corbitt and Raya were familiar with this policy.

Because Cavaluzzi was the regional human resources manager, the person in charge

of enforcing Home Depot’s policies at the regional level, we infer that he was familiar

with this policy as well.

3
This section of the policy has been reformatted for clarity.

11
 4. Reports of Harassment

Raya first discussed Cavaluzzi’s conduct with Donna Calhoun in April.

Calhoun was a store human resources manager, one of the persons listed in the Home

Depot policy to be contacted in a case of sexual harassment when an employee does

not feel comfortable discussing it with other managers.

In June, Corbitt also contacted Calhoun about Cavaluzzi’s conduct. Corbitt

testified that he feared for his job and did not want Calhoun to make a formal

complaint about Cavaluzzi’s conduct. Corbitt hoped Calhoun would be able to do

something about Cavaluzzi’s harassment without Corbitt losing his job. He did not

want Calhoun to anger Cavaluzzi, but he wanted the inappropriate behavior to stop.

In June, Calhoun spoke directly with Cavaluzzi, who was her boss, about his

conduct. She told Cavaluzzi that Corbitt and Raya were uncomfortable with his

behavior and felt that he was sexually harassing them; that Cavaluzzi should stop this

behavior; and that if he did not, it was likely to become a formal issue.

Between June and December 13, 2005, the date when both Corbitt and Raya

were fired, Calhoun talked to Cavaluzzi on at least four separate occasions about his

inappropriate behavior toward the two store managers. She testified that Cavaluzzi’s

response was that her concerns were ridiculous.

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 Other complaints were made to managers at Home Depot concerning

Cavaluzzi’s actions. In August, Raya told Rich Edgeworth, a store human resources

manager, that he wanted to file a formal complaint, even though he felt that he would

be fired. Edgeworth agreed to report Cavaluzzi’s actions. Although Edgeworth quit

his job before making the report, Edgeworth told Calhoun that since he was no longer

an employee of Home Depot, it was up to her to do what was necessary about

Cavaluzzi’s behavior. Further, after complaining to Calhoun in June, Corbitt

complained directly to McLaughlin in the fall of 2005.

In addition, at some point after his complaint to Edgeworth and before he was

terminated, Raya received a report from his store human resources manager, Susan

Parker, about statements that Cavaluzzi had made to her, such as that Cavaluzzi was

“going to get” Raya, Raya’s “days were numbered,” and Raya was “not out of the

woods.” She also told Raya that “Lenny had a hard-on for him,” which she stated

meant that Cavaluzzi had it in for Raya. Additionally, Parker reported that Cavaluzzi

had instructed her to have Raya call Cavaluzzi directly if Raya had a problem with

Cavaluzzi’s comments.

Before Raya called Cavaluzzi, however, he placed a call to McLaughlin to

explain what had happened and to advise that he was going to call Cavaluzzi. Raya

decided it would be wise “to partner with” his district manager to resolve the

13
problem; therefore, he told McLaughlin of Cavaluzzi’s sexual comments and that

Cavaluzzi’s threats were being made because Raya had refused Cavaluzzi’s sexual

advances. McLaughlin told Raya not to call Cavaluzzi and chastised Parker for

repeating Cavaluzzi’s comments to Raya.

On November 18, 2005, Corbitt and Raya directed Calhoun to do whatever had

to be done to make Cavaluzzi stop his inappropriate behavior. Calhoun later told

both Corbitt and Raya that she had filed complaints on their behalf.

Because Calhoun was warned by Cavaluzzi never to go over his head, Calhoun

reported his inappropriate behavior to one of Cavaluzzi’s “business partners” in the

region, McLaughlin, who was on a level equal to Cavaluzzi. When all her efforts to

get Cavaluzzi to stop harassing Corbitt and Raya failed, including reporting the

harassment to McLaughlin, she called the Aware Line, as specified in Home Depot’s

policy, and reported Cavaluzzi’s sexual harassment. After the Aware Line complaint

was made in late November, Cavaluzzi ceased harassing both Corbitt and Raya.

5. Terminations of Corbitt and Raya

Less than one month after a formal complaint had been made to McLaughlin

and Calhoun reported the sexual harassment on Home Depot’s Aware Line, Corbitt

and Raya were terminated as employees of Home Depot. The terminations occurred

14
at two different meetings attended by Cavaluzzi and McLaughlin separately with

Corbitt and Raya.

Right after these terminations occurred, Cavaluzzi called Calhoun, about which

Calhoun testified as follows:

A: I got a call from Lenny, it was mid morning, he was quite happy, he was
calling to let me know that he had gotten Dave and that Dave and Alex
had both been fired, and he went into detail about they had been called
to a store, the Pensacola store, and they had been brought in there
separately and they had been terminated. And their wives were in the
pa[r]king lot or somebody’s wife was in the parking lot, and he thought
that was hilarious. I mean, he just–he went into a lot of detail
that–definitely he received pleasure from what he was doing and almost
was happy that he was being able to report it to me. It was–

Q: Did Mr. Cavaluzzi take credit for their terminations?

A: Yes, he did.

Q: Would you say he bragged about it?

A: Oh, he was definitely bragging about it. He laughed.

In addition, Raya testified that Cavaluzzi told Raya that he had been involved in the

investigation which led to the terminations of Corbitt and Raya. When Raya

reviewed the investigative file, he found confirmation of Cavaluzzi’s claim in a

document which listed Cavaluzzi’s name as the investigator.

Cavaluzzi described the terminations of Corbitt and Raya as group decisions,

with every person in the group, including himself and McLaughlin, having input.

15
However, he also explained that “[the Home Depot executives] don’t put it on us to

make the [termination] decision[s]; that’s their decision.” Because both Corbitt and

Raya had tenure with Home Depot due to their ten years or more of employment and

because both were store managers, Cavaluzzi and McLaughlin had to obtain approval

for the terminations from corporate officers at a level higher than their

district/regional management level. Corbitt and Raya claim that the vehicle that

Cavaluzzi and McLaughlin used for achieving the terminations was an investigation

by Michael “Mike” Hall, then a district loss prevention manager, of markdown

practices that had purportedly been uncovered in early 2005.

Hall’s job in loss prevention included investigating theft and any other

practices that could cause losses in all Home Depot stores within his district. Hall’s

investigation began in the spring of 2005, and he allegedly uncovered questionable

markdowns and discounted sales to customers, employees, contractors, and a

competitor. During the investigation, Hall coordinated his efforts with the district

manager, McLaughlin. Hall explained that he was a “business partner” of

McLaughlin in the district: “He was my business partner, and I had to make sure that

he was kept apprised of issues I’d find in the area. . . . We looked at each other as

peers. I was in the same district he was in, so naturally we had to coordinate a lot of

items.”

16
 Throughout the investigation, Hall gave McLaughlin copies of his interim

reports and also e-mailed McLaughlin.4 Hall’s investigation report includes several

documents that suggest McLaughlin was actively involved in the investigation. For

instance, McLaughlin contacted Hall about a list of contractors’ names that

McLaughlin had discovered on a Rolodex in Corbitt’s store, and Hall entered in his

notes: “District manager Leon McLaughlin notified Mike Hall, DLPM, of the

situation and stated that if it developed, he would be asking for assistance.” Hall

stated that he already knew about this situation when McLaughlin contacted him.

Hall’s notes indicate that McLaughlin asked that loss prevention look into the items

and report back to McLaughlin. In addition, Hall’s investigation report includes

several letters to McLaughlin responding to his inquiries about markdown practices

in the district. Further, Hall’s notes reflect that on December 2, 2005, McLaughlin

attended Hall’s separate investigative interviews with Corbitt and with Raya.

Hall testified that he found many violations by many employees in many Home

Depot stores during his investigation, and he did not focus on Raya and Corbitt.

Nevertheless, sometime in or after October, Hall began pulling documents on Corbitt

4
Hall did not know for certain but assumed that Cavaluzzi got copies of his interim reports
as a human resources person, either from e-mails forwarded by McLaughlin or from Hall’s
supervisor.

17
and Raya that were contained in his file. In November, he provided McLaughlin with

a copy of his final report. He also sent the investigation report to the regional

management level. Within a short time, Corbitt and Raya were fired.

After Hall’s investigation report was sent to regional management, Lisa

Keglovitz, the regional human resources director and Cavaluzzi’s direct supervisor,

spoke to Cavaluzzi and informed him that the terminations of Corbitt and Raya had

been approved.5 Cavaluzzi then drafted termination notices for Corbitt and Raya. He

included nearly identical language in both notices concerning the grounds for

termination. Raya’s termination notice provided the following grounds for his firing:

It has been brought to District and Regional Managements[’] attention
that Alex Raya was approving mark downs not consistent with company
policy. A thorough investigation was performed; findings showed that
on multiple occasions Alex approved mark downs that were not properly
authorized or consistent with normal operating procedures as out lined
in policy for customers/contractors, associates and competitors. Further
investigation also confirmed that Alex used a Nextel phone that was
company property for his own personal use. This behavior is a direct
violation of Company Policy and the Code of Conduct. As a Store
Manager it is expected that you model behavior that is consistent with
company policy and the Code of Conduct.

Similarly, Corbitt’s termination notice stated:

It has been brought to District and Regional Managements[’] attention
that David Corbitt was approving mark downs not consistent with

5
The person(s) responsible for making the termination decisions is a highly disputed issue
that is discussed in more detail in Section III.B.1, infra.

18
 company policy. A thorough investigation was performed; findings
showed that on multiple occasions David approved mark downs that
were not properly authorized or consistent with normal operating
procedures as out lined in policy for customers/contractors, associates
and competitors. Further investigation also confirmed that David used
a Nextel phone that was company property for his own personal use.
This behavior is a direct violation of Company Policy and the Code of
Conduct. As a Store Manager it is expected that you model behavior
that is consistent with company policy and the Code of Conduct.

These notices were signed by Cavaluzzi as the manager approving the

terminations. McLaughlin signed the termination notices also as

“Supervisor/Manager Conducting Counseling Session.” The firings were summarily

executed. Cavaluzzi flew to Pensacola on the morning of December 13, 2005, and

summoned first Raya and then Corbitt into the room separately to fire each man. The

termination notices were read aloud, but there was no discussion about the specific

policy violations that Corbitt and Raya allegedly committed nor was there any

counseling of either manager.

6. Corbitt and Raya’s Evidence in Refutation of Grounds for Termination

The record contains evidence on behalf of both Corbitt and Raya refuting the

allegations of wrongdoing which Home Depot contends were the reasons for their

terminations. In response to the claim he had made an improper blanket markdown

to contractors, associates, and a competitor, Corbitt provided a statement denying that

there is or ever was a policy for associates, vendors, or installers to receive automatic

19
discounts, and as to customers, discounts were given on a case-by-case basis

depending on the situation, such as damaged material, poor service, or poor

installation. Corbitt also noted that according to the standard operating procedures

of Home Depot, each manager and associate had a certain dollar authority within

which to make these decisions, and he at no time violated the Home Depot policy.

Similarly, Raya stated that contractors asked for a ten percent discount,

representing that Lowe’s gave such a discount. Raya called Lowe’s to confirm,

which it did. Further, Raya called Sandy Snyder at the Foley Home Depot store and

was told that Snyder gave the same discount. Therefore, Raya began to give the

markdown from time to time on some sales to contractors, many with express

approval of his district manager, Erik Dardas, and only if the sale would be profitable

to Home Depot. Raya at first ran by Dardas every markdown of this nature being

given until he learned the information Dardas felt was important for approving the

markdown; then Raya asked the same questions, and if the sale was profitable, he

would approve the markdown.

There are additional witness statements in the record providing that the ten

percent discount to contractors had been implemented to compete with Lowe’s, was

a fairly common practice in the district, and had the express approval of Dardas.

Dardas admitted that after receiving information from contractors that they were

20
receiving ten percent discounts from Lowe’s, he instructed all his store managers that

if this was in fact happening, he wanted them to match the offer to keep the customer.

During the course of the investigation, Raya was also questioned about the

long-ago sale of a door that had been sold twice, returned, was in a damaged

condition, and was sold to a Home Depot associate at a discount for $500.00. He

explained that based on information McLaughlin and Hall had presented to him much

later, the door was not as damaged as he had been told, and he felt that the condition

of the door had been misrepresented to him by an employee at the store.

Regarding sales to Midway Lumber, a competitor of Home Depot, several

witnesses stated that such sales had been approved by higher-level management and

that Midway Lumber was a longtime customer of Home Depot. For instance,

Calhoun testified that she had been present when Dardas gave Raya permission to

make the sales to Midway Lumber and stated that she could name several more

people who were witnesses to this authorization. Raya testified that over eighty

percent of markdowns in price made to Midway Lumber were first approved by

Dardas, and further, under Home Depot’s policy, Raya had authority as store manager

to approve a markdown of up to $1,000.00 on his own.6 Additionally, Scott Gayle

6
Similarly, Corbitt testified that he had authority as store manager to approve markdowns
up to $1,500.00 on his own without getting the permission of his district manager.

21
stated that Dardas challenged Corbitt’s store to get the Midway account and that

Midway had been their largest commercial account “for some time.”7

As to the claim of improper use of a company Nextel phone and improper

retention of a store phone after he transferred to another store, Corbitt asserted that

when he left the store, he received permission from the incoming store manager to

continue using one of the three store Nextel phones for a couple of weeks so he could

get the contacts on it switched over to one of his new store’s Nextel phones. Further,

Corbitt testified that McLaughlin knew he had his former store’s Nextel phone and

that McLaughlin had called Corbitt on this Nextel phone several times without any

reprimand. Moreover, Corbitt offered to produce his personal cell phone bills, stating

he used his personal cell phone for personal business as well as company business,

and he denied using the company phone for personal calls.

With respect to Raya’s use of a Home Depot Nextel phone, Raya testified that

when he put together the grand opening for the new Pensacola store, people

contacting him about the event had the number for his old cell phone. Therefore,

Raya continued to use the phone to put together the grand opening, and he gave it

7
Hall testified that another store manager, Chris Mangino, gave several markdowns to
Midway Lumber, and Hall did not believe, although he did not know, that Mangino was disciplined.

22
back to the Daphne store right after that event was completed. Thus, he used this

phone for company business.

II. STANDARD OF REVIEW

We review de novo a district court’s grant of summary judgment. Chambless

v. Louisiana-Pacific Corp., 481 F.3d 1345, 1349 (11th Cir. 2007). When deciding

a motion for summary judgment, a district court must consider all inferences drawn

from the underlying facts in the light most favorable to the party opposing the motion

and must resolve all reasonable doubts against the moving party. Anderson, 477 U.S.

at 255, 106 S. Ct. at 2513. The grant of summary judgment should be affirmed if,

after construing the evidence in the light most favorable to the non-movant, we find

“that there is no genuine issue as to any material fact and that the movant is entitled

to judgment as a matter of law.” FED. R. CIV. P. 56(c).

III. DISCUSSION

A. Sexual Harassment

1. General Principles

Title VII of the Civil Rights Act of 1964 states that it shall be an unlawful

employment practice for an employer “to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment, because

of such individual’s race, color, religion, sex, or national origin. . . .” 42 U.S.C. §

23
2000e-2(a)(1). To establish a claim of sexual discrimination under Title VII due to

hostile work environment harassment caused by a supervisor,8 an employee must

produce evidence showing:

(1) that he or she belongs to a protected group; (2) that the employee has
been subject to unwelcome sexual harassment, such as sexual advances,
requests for sexual favors, and other conduct of a sexual nature; (3) that
the harassment must have been based on the sex of the employee; (4)
that the harassment was sufficiently severe or pervasive to alter the
terms and conditions of employment and create a discriminatorily
abusive working environment; and (5) a basis for holding the employer
liable.

Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999) (en banc) (citing

Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th Cir. 1982)).

The district court concluded that Corbitt and Raya had not demonstrated the

fourth element of a hostile work environment claim; therefore, we confine our

analysis to this element.

2. Severe or Pervasive Harassment

Title VII is not meant to be a workplace “civility code.” Faragher v. City of

Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 2283-84 (1998) (internal quotation

marks and citation omitted). Sexual harassment constitutes sex discrimination only

8
We assume without deciding that Cavaluzzi is a supervisor of Corbitt and Raya because
the district court below considered the claim using the supervisor-as-harasser analysis, and neither
party has presented this as an issue on appeal.

24
when the harassment “alter[s] the terms and conditions of employment. . . .”

Mendoza, 195 F.3d at 1245. Thus, harassment constitutes employment discrimination

only if “the conduct is sufficiently severe or pervasive to alter the conditions of the

victim’s employment and create an abusive working environment.” Id. (internal

quotation marks, brackets, and citations omitted). This “filter[s] out complaints

attacking the ordinary tribulations of the workplace, such as the sporadic use of

abusive language, gender-related jokes, and occasional teasing.” Faragher, 524 U.S.

at 788, 118 S. Ct. at 2284 (internal quotation marks and citation omitted). This

determination involves both a subjective and an objective component:

The employee must subjectively perceive the harassment as sufficiently
severe and pervasive to alter the terms or conditions of employment, and
this subjective perception must be objectively reasonable. The
environment must be one that a reasonable person would find hostile or
abusive and that the victim subjectively perceives to be abusive.
Furthermore, the objective severity of harassment should be judged from
the perspective of a reasonable person in the plaintiff’s position,
considering all the circumstances.

Mendoza, 195 F.2d at 1246 (citations, quotation marks, brackets, and ellipses

omitted). To determine whether conduct is sufficiently severe or pervasive, we

consider four factors: “the frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere offensive utterance; and

25
whether it unreasonably interferes with an employee’s work performance.” Harris

v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S. Ct. 367, 371 (1993).

Before analyzing the alleged harassment within the rubric of these four factors,

the law requires that we determine which instances of harassment should be included

in the analysis. We consider only “the statements and conduct . . . of a sexual or

gender-related nature. . . .” Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 583 (11th

Cir. 2000). “Innocuous statements or conduct, or boorish ones that do not relate to

the sex of the actor or of the offended party . . . are not counted.” Id. Here, a number

of the instances the Appellants complained of were not sexual in nature. For

example, Cavaluzzi telling Raya that he liked how Raya dressed, that he liked his

pants, that his hair was beautiful, and that he liked his green eyes may not be

appropriate workplace conversation, but it is not actionable conduct under Title VII.

Further,

[a] man can compliment a woman’s looks . . . on one or several occasions, by
telling her that she is looking ‘very beautiful,’ or words to that effect, without
fear of being found guilty of sexual harassment for having done so. Words
complimenting appearance may merely state the obvious, or they may be
hopelessly hyperbolic. Not uncommonly such words show a flirtatious
purpose, but flirtation is not sexual harassment.

Id. at 584. Flirtation is part of ordinary socializing in the workplace and should not

be mistaken for discriminatory conditions of employment. Oncale v. Sundowner

26
Offshore Servs., Inc., 523 U.S. 75, 81, 118 S. Ct. 998, 1003 (1998). “Mere solicitude,

even if repetitive, is not sexually harassing behavior.” Gupta, 212 F.3d at 583. In the

instant case, many of the comments that bothered the Appellants were merely

complimentary, and some were clearly flirtatious, but this is not sexual harassment

for the purposes of Title VII. Although the Appellants may be subjectively more

uncomfortable because a presumably gay man made the flirtatious comments, this

does not factor into the objective component of the analysis. We thus find that only

one of the comments Cavaluzzi made over the phone to Raya is of a sexual nature.9

Likewise, some of Cavaluzzi’s alleged touchings of Raya were not sexual in

nature. Raya stated that Cavaluzzi put his arm around him like Cavaluzzi was his

“best friend in the world”—this is not sexual in nature, and if a heterosexual man had

9
The dissent notes the importance of context in the severe or pervasive analysis—certain
seemingly innocuous conduct, when viewed in context, could actually be sexually harassing conduct.
We do not disagree that context is important. See Oncale, 523 U.S. at 81-82, 118 S. Ct. at 1003
(noting the importance of common sense and context in sexual harassment cases). The dissent
would have a jury, not a court, interpret the facts that a plaintiff alleges. We do not necessarily
disagree with that either. However, we have held that, as a matter of law, we may not consider mere
flirtatious conduct or conduct that is not sexual in nature in the severe or pervasive analysis, even
if the target is offended by the conduct. Gupta, 212 F.3d at 583-84 (finding that the evidence was
insufficient to support a jury verdict in favor of an employee when the employee’s evidence included
various flirtatious and non-sex related comments and conduct). We have set up these standards so
that all sexual harassment cases do not need to go to a jury—this would “lower the bar of Title VII
to punish mere bothersome and uncomfortable conduct, and would ‘trivialize true instances of sexual
harassment.’” Id. at 586 (quoting Mendoza, 195 F.3d at 1252 n.10). Therefore here, viewing the
record in the light most favorable to the Appellants, we include all conduct that is or arguably could
be sexual in nature in the severe or pervasive analysis, and omit from the analysis only the conduct
which no reasonable person would find is sexual in nature or more than mere flirtation.

27
done this, Raya would likely not have thought anything of it. We find that, viewing

the record in the light most favorable to the Appellants, five of the touchings of Raya

were sexual in nature, although they were all quite brief.

Similarly, Cavaluzzi’s comments that he liked the way Corbitt dressed or that

he was cute are not sexual in nature; those are simply flirtatious compliments. That

Corbitt may have subjectively interpreted them as sexual does not change the analysis

under the objective component.

The Appellants argue that Cavaluzzi’s conduct was frequent, stating that

Cavaluzzi committed between 74 and 108 sexual offenses to Corbitt and between 63

to 92 sexual offenses to Raya. They exaggerate. The record reflects far fewer

instances. Moreover, given the analysis above, there were even fewer instances, as

many of the comments and some of the touchings were not sexual in nature. Our

review of the record shows that there were five touchings and one comment that were

actually sexual in nature toward Raya—Cavaluzzi putting his hand on Raya’s thigh;

Cavaluzzi pressing his body against Raya such that Cavaluzzi’s body was touching

Raya’s “privates;” three instances of massage of the neck and shoulders; and

Cavaluzzi’s comment that Raya was “the Italian heifer that I like.”10 There were four

10
We do not hold that these instances are sexual in nature as a matter of law. Rather,
viewing the record in the light most favorable to the Appellants, we conclude that a fact-finder could
(continued...)

28
touchings and four comments that were actually sexual in nature toward

Corbitt—Cavaluzzi’s rubbing of Corbitt’s shoulder with one hand and Corbitt’s

stomach with the other; Cavaluzzi’s rubbing of Corbitt’s back, neck, head, and

shoulders at the November meeting; two more instances of massage of the neck and

shoulders; Cavaluzzi’s comment that he could show Corbitt how and he would “like

it;” Cavaluzzi’s question if Corbitt “wore boxers or briefs or nothing;” Cavaluzzi’s

comment about Corbitt’s “natural color down there”; and Cavaluzzi’s

recommendations of various gay websites so Corbitt “could see what [Cavaluzzi] is

talking about.”11 The frequency of harassment is analogous to the frequency in

Gupta, in which there were four touchings and frequent sexual comments, which was

not sufficiently frequent. 212 F.3d at 578.

Even to the extent that Cavaluzzi’s conduct was frequent, this “does not

compensate for the absence of other factors.” Mendoza, 195 F.3d at 1248. The

Appellants argue that Cavaluzzi’s harassment was severe. We disagree. The

Appellants claim that the touchings were “substantial,” but both Corbitt and Raya

admitted that most of the touchings were quite brief. In Gupta, touchings that

10
(...continued)
find that these instances are sexual in nature.
11
We do not hold that these instances are sexual in nature as a matter of law. Rather,
viewing the record in the light most favorable to the Appellants, we conclude that a fact-finder could
find that these instances are sexual in nature.

29
included briefly putting a hand on the plaintiff’s inner thigh and lifting the hem of the

plaintiff’s dress four inches were not sufficiently severe. Id. This conduct is no less

severe than Cavaluzzi’s massage and hugs, some of which were not even sexual in

nature. The most severe instance was perhaps when Cavaluzzi briefly put his hand

on Raya’s leg, but this is analogous to the conduct in Gupta that was not sufficiently

severe. The Appellants seem to suggest that the fact that the touchings were same-sex

makes them somehow more severe. This is not the law.

The Appellants also argue that Cavaluzzi’s comments were “sexual and

severe.” We disagree. Many of the comments, particularly those made to Raya, were

not sex-based. Some of Cavaluzzi’s comments to Corbitt, on the other hand, were

relatively severe (e.g. “I know you’re not gay, but you’ve probably thought about it,

I could show you how, I know you’ll like it”). The Appellants claim that they were

more severe than the conduct in Gupta or Mendoza, conduct we found was not

sufficiently severe. This is arguable. The conduct in Mendoza included an instance

of a coworker looking at the plaintiff’s groin area and sniffing, which is probably

more severe and certainly more humiliating than Cavaluzzi’s comments. While some

may find Cavaluzzi’s comments somewhat more severe, this does not save the

Appellants under the severe or pervasive element. No one factor is dispositive, unless

the conduct is very extreme. Instead, we examine conduct in context, not as isolated

30
acts, and determine under the totality of the circumstances whether the harassing

conduct was sufficiently severe or pervasive. Mendoza, 195 at 1245. The fact that

only several of the comments were sexual in nature and happened during brief phone

calls leads us to agree with the district court that the conduct was not sufficiently

severe or pervasive.

Because we find that Cavaluzzi’s alleged harassment was not sufficiently

severe or pervasive to support a hostile work environment claim, we need not

consider whether Home Depot established the affirmative defense set forth by the

Supreme Court in Faragher, 524 U.S. at 807, 118 S. Ct. at 2292-93 and Burlington

Industries, Inc. v. Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 2270 (1998).

B. Retaliation

The anti-retaliation provision of Title VII prohibits discrimination against an

employee for engaging in activity deemed protected under the statute. 42 U.S.C. §

2000e-3(a). A claim brought under this provision based on circumstantial evidence

is analyzed using the McDonnell Douglas12 burden-shifting model. See Hairston v.

Gainesville Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir. 1993) (citing Carter v. City

of Miami, 870 F.2d 578, 581 (11th Cir. 1989)). To make a prima facie case of

12
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S. Ct. 1817, 1824-26
(1973).

31
retaliation under Title VII, a plaintiff must show that: (1) he engaged in an activity

protected under Title VII; (2) he suffered an adverse employment action; and (3) there

was a causal connection between the protected activity and the adverse employment

action. Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). Once

a plaintiff establishes a prima facie case, the burden of production shifts to the

employer who must proffer a legitimate, non-retaliatory reason for the adverse

employment action. Crawford v. Carroll, 529 F.3d 961, 976 (11th Cir. 2008). If the

employer offers such a legitimate reason for the employment action, the plaintiff must

then demonstrate that the employer’s proffered explanation is a pretext for retaliation.

Id.

1. Prima Facie Case

The parties do not dispute the existence of the first and second elements of

Corbitt and Raya’s prima facie case. The disagreement concerns the third element:

whether there was a causal connection between the protected activity and the adverse

employment action.

In order to establish the requisite “causal link” required as part of a
prima facie case, a plaintiff need only establish that the protected
activity and the adverse action were not wholly unrelated. At a
minimum, a plaintiff must generally establish that the employer was
actually aware of the protected expression at the time it took adverse
employment action. The defendant’s awareness of the protected
statement, however, may be established by circumstantial evidence.

32
Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993) (internal quotation

marks and citations omitted). In the case of a corporate employer, “the plaintiff must

show that the corporate agent who took the adverse action was aware of the plaintiff’s

protected expression and acted within the scope of his or her agency when taking the

action.” Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1197 (11th Cir. 1997).

When a corporate employer denies that a particular employee had the authority

to make a termination decision, such denial puts the scope of that employee’s agency

in question and “impose[s] on [the plaintiff] the burden of establishing that [the

employee’s] authority extended to making personnel decisions regarding [the

plaintiff].” Id. at 1198. The sole fact that a particular employee informs a plaintiff

of his or her termination does not raise a genuine issue of material fact that such

employee is the decision maker. Id. An employee who functions as “a facilitator or

conduit only” is not a true decision maker. Id. Even if an employee reviews and

evaluates termination decisions, but does not have the authority to overrule such

decisions, that employee is not the decision maker. Clover v. Total Sys. Servs., Inc.,

176 F.3d 1346, 1356 (11th Cir. 1999).

33
 The actual awareness requirement “rests upon common sense.” Brungart v.

Bellsouth Telecommc’ns, Inc., 231 F.3d 791, 799 (11th Cir. 2000).13 “A

decisionmaker cannot have been motivated to retaliate by something unknown to

him.” Id. Because Title VII retaliation requires actual knowledge on the part of the

decision maker, the knowledge of one who is not a decisionmaker cannot be imputed

to the decisionmaker. Id. at 800.

Courts are wary of relying on weak circumstantial evidence to imply a

decisionmaker’s knowledge of protected expression. For instance, in Brungart we

found that “temporal proximity alone is insufficient to create a genuine issue of fact

as to causal connection where there is unrebutted evidence that the decision maker

did not have knowledge that the employee engaged in protected conduct.” Id. at 799.

Additionally, “while we have held that awareness of protected expression may be

established based on circumstantial evidence, our cases have required plaintiffs to

show a defendant’s awareness with more evidence than mere curious timing coupled

with speculative theories.” Raney, 120 F.3d at 1197. Thus, a mere “hunch” that an

employee with knowledge of protected expression informed a decisionmaker of the

13
Although Brungart was a retaliatory discharge case brought under the Family and Medical
Leave Act of 1993 (“FMLA”), 29 U.S.C. §§ 2601-54 (1994), we indicated that our analysis would
be the same under either the FMLA or Title VII. Brungart, 231 F.3d at 798.

34
protected expression does not constitute “significant probative evidence” to avoid

summary judgment. Id. at 1198.

However, evidence that a biased employee with retaliatory motives influenced

or participated in the decision to terminate an employee raises a genuine issue of

material fact whether there is a causal connection between the employee’s protected

conduct and his termination. See, e.g., Pennington, 261 F.3d at 1270, 1270 n.5

(explaining that a causal connection may exist “when the ultimate decisionmaker

never would have made the decision in the absence of the actions of the biased

employee, or was influenced by that bias”); Olmsted v. Taco Bell Corp., 141 F.3d

1457, 1461 (11th Cir. 1998) (upholding a jury verdict against an employer where

there was circumstantial evidence that “the decision to terminate [the plaintiff] was

at least influenced by individuals . . . who unequivocally had knowledge of [the

protected activity]”); Poland v. Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007) (“In

summary, we hold that to establish the essential element of causation in a subordinate

bias case—where the investigation that led to the adverse employment decision was

initiated by, and would not have happened but for, the biased subordinate—the

plaintiff must show that the allegedly independent adverse employment decision was

not actually independent because the biased subordinate influenced or was involved

in the decision or the investigation leading thereto.”). Furthermore, the position of

35
a biased employee within the company may raise an inference that he influenced the

termination decision:

Given the nature of [retaliatory employee] Raymond’s position as a
human resources specialist and his professional relationship with
[decisionmaker] Sharon Powell (who often consulted with him on
various personnel-related issues), a jury could reasonably conclude that
she and [decisionmaker] Phil Tatum relied on his recommendation in
deciding to terminate Wright. If so, Raymond’s retaliatory intent could
be considered the cause of Wright’s termination, despite the fact that
Raymond was not one of the people who actually made the decision to
discharge Wright.

Wright v. Southland Corp., 187 F.3d 1287, 1306 n.26 (11th Cir. 1999).

In the instant case, Corbitt and Raya assert that they have proven the causal

connection between their complaints of harassment and their terminations by

introducing evidence of three facts: (1) “the group decision [was] tainted with the

knowledge of Cavaluzzi and possibl[y] McLaughlin”; (2) “Cavaluzzi’s own laughing,

bragging, boast that he got them fired”; and (3) “the notice to a delineated appropriate

representative.”

Regarding the first two facts, Corbitt and Raya contend that Cavaluzzi and

McLaughlin were decisionmakers who were motivated by retaliation. Cavaluzzi had

retaliatory motives because their complaints of sexual harassment were against him,

and McLaughlin had retaliatory motives because he was a “business partner” of

Cavaluzzi who had knowledge of Cavaluzzi’s sexual harassment and could be facing

36
termination for failing to act on Corbitt’s and Raya’s complaints.14 Significantly,

Corbitt and Raya note that they were terminated twenty-five days after they made

formal complaints of Cavaluzzi’s harassment to McLaughlin and Home Depot’s

Aware Line through Calhoun.

As to the first highlighted fact, to demonstrate that Cavaluzzi caused their

terminations by participating in the group decision, Corbitt and Raya point to

Cavaluzzi’s deposition testimony in which Cavaluzzi admitted that he approved

Corbitt’s and Raya’s termination notices and participated in their termination

counseling sessions. He also testified that the terminations were group decisions, and

he agreed that he was a part of the termination group. However, when questioned

further about the meaning of his signature on the termination notices, Cavaluzzi gave

the following testimony:

Q: Well, you wrote the reason for the termination, correct?

A: Again, I will tell you one more time. I did not even–this was
written–give a rough draft, okay, even on a ten-year associate, I
can’t even have this delivered without approval. So this was
wordsmithed by another person.

Q: You didn’t write this?

14
McLaughlin stated in his sworn declaration that he was unaware of Corbitt’s and Raya’s
complaints of harassment until well after their terminations. McLaughlin’s declaration is in direct
conflict with the sworn testimony of Calhoun, Corbitt, and Raya, each of whom testified about
telling McLaughlin directly of Cavaluzzi’s sexual harassment of Corbitt and Raya on several
occasions in the fall of 2005 before these store managers were terminated.

37
 A: I wrote it and it was wordsmithed and send back to me.

Q: Then you read it and you approved it, the language?

A: I read it and we went for termination.

Q: Surely you’re not telling me you just rubber-stamped it?

A: I’m not what?

Q: Surely you’re not saying, I just rubber-stamped this piece of
paper?

A: I don’t know what you mean by that.

Q: I just wrote my name on it without looking at it or–

A: No. Of course, I read it. It would be ridiculous to say I haven’t
read it.

In response to additional questioning, Cavaluzzi stated, “Again, I did not make the

decision to fire them.”

Home Depot argues that this testimony, when viewed in context, shows that

Cavaluzzi was not actually a decisionmaker but instead was merely a conduit through

which Home Depot provided Corbitt and Raya with their termination notices. Home

Depot states that the recommendation to terminate Corbitt and Raya was made by

Keglovitz, the regional human resources director, and Powers, the regional vice

president, based upon an investigation independently initiated and conducted by Hall.

The termination recommendations were then reviewed and approved by Taylor, the

38
divisional employment practices director, and Goldsmith, the human resources vice

president. Curiously, while Keglovitz and Powers state that they “recommended”

termination, and Taylor and Goldsmith state that they “approved” termination, no

Home Depot management employee expressly states that he or she was responsible

for making the actual termination decision.

The sworn declarations of Keglovitz, Powers, Taylor, and Goldsmith include

nearly identical paragraphs in which they state that they were not aware that either

Corbitt or Raya complained of sexual harassment against Cavaluzzi when the

termination recommendations or approvals were made, and that they did not learn of

the allegations of sexual harassment until well after Corbitt and Raya were

terminated. While Keglovitz testified that she communicated with Cavaluzzi about

the terminations, apparently at no time did Cavaluzzi, a regional manager, tell his

supervisor, Keglovitz, that he was the subject of sexual harassment complaints by

both Corbitt and Raya. In addition, Cavaluzzi testified that he was in communication

with Keglovitz about the investigation of Corbitt and Raya before the terminations.15

Similarly, McLaughlin failed to tell his supervisor, Powers, at any time before Corbitt

and Raya were terminated that both store managers had made complaints against

15
Cavaluzzi testified “I did not really talk with Mike Hall. I talked more with my boss, Lisa
[Keglovitz], about the investigation.”

39
Cavaluzzi, and further that McLaughlin, knowing of such complaints, had taken no

action to stop the harassment.

Nevertheless, Corbitt and Raya have provided evidence that Cavaluzzi and

McLaughlin participated in the Hall investigation and influenced the termination

decision purportedly made by Keglovitz, Powers, Taylor, and Goldsmith. As to

Cavaluzzi’s involvement, Corbitt and Raya point to their second highlighted fact:

Calhoun testified that Cavaluzzi called her and bragged that he was responsible for

Corbitt and Raya’s terminations. Cavaluzzi’s own admission that he orchestrated the

terminations of Corbitt and Raya, in addition to his testimony that he participated in

the group termination decision, raises a factual issue whether he caused Corbitt’s and

Raya’s terminations in retaliation for their complaints of harassment.

Moreover, Raya gave testimony during his deposition about threats Cavaluzzi

made. He testified that Cavaluzzi’s statements and actions indicated that he was “out

to get” Raya. Raya’s store human resources manager, Susan Parker, purportedly told

Raya that Cavaluzzi had said that he was “going to get” Raya, Raya’s “days were

numbered,” and Raya was “not out of the woods.” Further, Cavaluzzi informed Raya

that he was involved in the investigation that resulted in Raya’s termination.

In a previous case, we found that similar evidence raised a genuine issue of

material fact concerning whether a retaliatory employee caused a termination, thus

40
establishing the requisite causal connection between the employee’s protected

conduct and his termination:

The threat of “You will regret it,” made by a human resources director,
hardly could be anything other than a threat of some form of
employment-related hardship. Furthermore, the threat was clearly
linked to the statutorily-protected activity of pursuing a complaint with
the EEOC. Finally, [the employee] was terminated—based in part on
[the human resources director’s] recommendation—one month
thereafter. Thus, [the employee’s] testimony, if believed, is sufficient
to make out a case of retaliation.

Wright, 187 F.3d at 1306 (footnote omitted).16 Also, Cavaluzzi stated in his

deposition that he was “business partners” with all the district managers in his region.

One such district manager was McLaughlin. Cavaluzzi explained that it was his job

“to influence” the district managers regarding personnel decisions. A jury could

reasonably infer from this evidence that, given his retaliatory motives, boasts, and

threats, Cavaluzzi influenced Hall’s investigation of Corbitt and Raya through

McLaughlin and thus participated in the group decision to terminate them. See

Wright, 187 F.3d at 1306 n.26 (inferring a retaliatory employee’s influence in the

termination decision from the professional relationship between the decisionmakers

and the retaliatory employee).

16
In Wright, we found these threats to be direct evidence of retaliation. Wright, 187 F.3d
at 1305-06.

41
 Because Cavaluzzi’s statements contradict Home Depot’s evidence that

Cavaluzzi was not involved in the group termination decisions, and because Corbitt

and Raya have produced evidence that suggests Cavaluzzi took part in the termination

decisions, there is a genuine factual issue whether Cavaluzzi caused the terminations.

Similarly, the record demonstrates that McLaughlin was an active participant

in the Hall investigation that led to the terminations. A number of documents in

Hall’s investigation report were employee responses to questions from McLaughlin.

Furthermore, McLaughlin directed Hall at least once specifically to investigate

Corbitt’s markdown practices.17 Additionally, on December 2, 2005, McLaughlin

attended Hall’s separate investigative interviews with Corbitt and with Raya.

Moreover, Corbitt testified that McLaughlin interviewed the employees in his store

about Corbitt’s performance, the times he arrived and left work, and instructed the

employees not to tell Corbitt anything about his questioning.

Both Corbitt and Raya testified that they complained directly to McLaughlin

about Cavaluzzi’s behavior in the fall of 2005. After Parker told Raya about the

threats Cavaluzzi had made against him, Raya in turn told McLaughlin about

Cavaluzzi’s sexual harassment and threats. Raya asked McLaughlin “to partner with”

17
This testimony is in conflict with paragraph 15 of Hall’s affidavit in which he states under
oath “Home Depot’s District manager, Leon McLaughlin, did not attempt to influence or direct me
to investigate any particular subject matter or individual.”

42
him to confront Cavaluzzi about these threats. Instead, McLaughlin chastised Parker

for telling Raya of Cavaluzzi’s threats and told Raya not to call Cavaluzzi. One could

reasonably infer from this evidence that McLaughlin was aware of Cavaluzzi’s

retaliatory motives and was trying to hide this information from Corbitt and Raya.

McLaughlin also could have been concerned for his own job due to his failure to act

on the complaints of harassment in violation of Home Depot’s policy.

As their third highlighted fact, Corbitt and Raya emphasize that they reported

the harassment to a delineated Home Depot representative, Calhoun, to establish

Home Depot’s knowledge of the harassment prior to their terminations. In the case

of a retaliation claim against a corporate defendant, however, knowledge of someone

within the corporation may not be imputed to the decisionmaker. Brungart, 231 F.3d

at 799-800. For a corporate defendant to be held liable for a retaliatory discharge, the

corporate agent making the discharge decision must either have actual knowledge of

the protected conduct or be influenced by someone with knowledge. Thus, Calhoun’s

knowledge does not establish notice to Home Depot of Corbitt’s and Raya’s

complaints of harassment.

Nevertheless, the record presents sufficient circumstantial evidence to raise

genuine issues of material fact concerning Cavaluzzi’s and McLaughlin’s

involvement in the decisions to terminate Corbitt and Raya. We have previously

43
explained that a corporate employer is not insulated from the actions of a retaliatory

subordinate who manipulates the decisionmakers into terminating an employee. See,

e.g., Pennington, 261 F.3d at 1270, 1270 n.5 (explaining that a causal connection

may exist where the termination decision is “tainted” by the retaliatory animus of a

subordinate employee); Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th

Cir. 1999) (per curiam) (“causation may be established if the plaintiff shows that the

decisionmaker followed the biased recommendation without independently

investigating the complaint against the employee”); Wright, 187 F.3d at 1304 n.20

(stating that the discriminatory intent of a subordinate may be deemed the cause of

an employee’s termination if that biased subordinate “manipulated the

decisionmakers . . . into terminating” the employee). In this case, the retaliatory

employee, Cavaluzzi, was a human resources employee and a member of upper

management. His business partner, McLaughlin, was also a member of upper

management. A jury could reasonably infer from the evidence that these high-level

managers influenced the Hall investigation. Additionally, because it is undisputed

that the purported decisionmakers, Keglovitz, Powers, Taylor, and Goldsmith, did not

make an independent investigation of the policy violations allegedly committed by

Corbitt and Raya, a jury could reasonably infer that Cavaluzzi and McLaughlin

caused the terminations of Corbitt and Raya.

44
 2. Legitimate, Non-Retaliatory Reason

Once a plaintiff has established a prima facie case of retaliation, “‘the burden

shifts to the defendant to rebut the presumption of retaliation by producing legitimate

reasons for the adverse employment action.’” Raney, 120 F.3d at 1196 (quoting

Hairston, 9 F.3d at 919). It is undisputed that Home Depot has done so by stating

that Corbitt and Raya were terminated for violating Home Depot’s standard operating

procedures and code of conduct. Specifically, the termination notices for both Corbitt

and Raya, drafted by Cavaluzzi using nearly identical language, stated that these

managers were “approving mark downs not consistent with company policy.” They

continued to state that these “mark downs . . . were not properly authorized or

consistent with normal operating procedures.” Additionally, “further investigation”

confirmed that Corbitt and Raya “used . . . Nextel phone[s] that [were] company

property for [their] own personal use.” Because Home Depot has produced

legitimate, non-retaliatory reasons for Corbitt’s and Raya’s terminations, we must

consider whether Corbitt and Raya have demonstrated that these reasons are instead

pretext for retaliation.

3. Pretext

A plaintiff raises a genuine issue of material fact concerning pretext if the

plaintiff casts sufficient doubt on the defendant’s proffered non-retaliatory reasons

45
to permit a reasonable fact finder to conclude that the employer’s proffered reasons

were not what actually motivated its conduct but were pretext for retaliation.

Crawford, 529 F.3d at 976; Combs v. Plantation Patterns, Meadowcraft, Inc., 106

F.3d 1519, 1538 (11th Cir. 1997). A plaintiff may show pretext “‘either directly by

persuading the court that a discriminatory reason more likely motivated the employer

or indirectly by showing that the employer’s proffered explanation is unworthy of

credence.’” Jackson v. Ala. State Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir.

2005) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct.

1089, 1095 (1981)). “‘A plaintiff withstands summary adjudication by producing

sufficient evidence to allow a reasonable finder of fact to conclude that the

defendant’s articulated reasons for its decision are not believable.’” Id. (brackets

omitted) (quoting Howard v. BP Oil Co. 32 F.3d 520, 526 (11th Cir. 1994)). In

reviewing a summary judgment motion, “‘the district court must evaluate whether the

plaintiff has demonstrated such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer’s proffered legitimate reasons for its

action that a reasonable factfinder could find them unworthy of credence.’” Id.

(quoting Combs, 106 F.3d at 1538).

The district court summarized the bulk of the evidence of pretext provided by

Corbitt and Raya as follows:

46
 [Appellants] attempt to show pretext by offering comparators who
allegedly committed the same or similar mark down violations without
being terminated. [Appellants] submit that 1) Store Manager, Tim
Pardue, gave blanket ten percent discounts to contractors at the Foley
Store; 2) Store Manager, Sandy Snyder, continued Pardue’s practice of
giving 10 percent discounts to contractors at the Foley store; 3)
Assistant Store Manager, Dan Shulte, allowed the blanket discounts to
contractors at the Foley store; 4) Store Manager, Donna Montgomery,
replaced Corbitt at the Foley store and continued the blanket 10 percent
discounts to contractors; 5) District Manager, Eri[k] Dardas, approved
blanket ten per cent discounts to contractors at the Foley store and
approved discounted sales to competitor, Midway Forest Products;18 6)
Either Aaron Flow or Chris Mangino and either Sabrina Jones or Dan
Shulte were the store managers of the Pensacola Store and allowed
discounts to Adams Homes; 6) Store Manager, Rick Liska, gave blanket
10 percent discounts to contractors on all sales over $1,000 if made on
Home Depot charge cards and us[ing] a Home Depot cell phone, 7)
District Manager, Leon McLaughlin, approved or allowed Liska to give
10 percent discounts to contractors and approved sales to a competitor,
Midway Forest Products, 8) Store Manager, Aaron Flow, sold
discounted truckloads of OSB sheets to competitor, Midway Forest
Products, 9) Store Manager, Mike McGowan, approved sales to a
competitor, Midway Forest Products, 10) Store Manager, Chris
Mangino, marked down sales to a competitor, Midway Forest Products,
and 11) Vicki Hall used a Home Depot cell phone.

We have explained the degree to which a comparator employee must be

similarly situated: “The plaintiff and the employee she identifies as a comparator must

be similarly situated ‘in all relevant respects.’ The comparator must be nearly

identical to the plaintiff to prevent courts from second-guessing a reasonable decision

18
Rather than serve as comparator evidence, this fact tends to challenge the veracity of
Home Depot’s claim that Corbitt’s and Raya’s markdowns and sales to a competitor were
unauthorized.

47
by the employer.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir.

2004) (citation omitted). Citing this language, the district court found that Corbitt

and Raya’s comparator evidence did not establish pretext because the proffered

comparators did not have the exact same positions as Corbitt and Raya and did not

engage in the exact same policy violations.

In analyzing this evidence solely as comparator evidence, however, the district

court failed to examine whether the evidence also offered support for Corbitt and

Raya’s arguments that they did not in fact violate Home Depot’s policies and/or that

their actions were authorized by their district manager, Dardas, or were within their

discretion as store managers. In this regard, the district court did not fully consider

the arguments made by Corbitt and Raya concerning the illegitimacy of the reasons

given by Home Depot for their terminations. Instead, the court simply stated that it

“does not find the reasons offered by Home Depot to be inconsistent.” The court

continued:

The court also finds unavailing [Appellants’] contention that pretext is
provided by Home Depot’s failure to produce more evidence regarding
when the investigation started or to have kept a better record of the
investigation. [Appellants] have submitted no reliable evidence that the
investigation was a sham or that it was only begun because [Appellants]
complained about Cavaluzzi’s conduct.

48
 There is circumstantial evidence supporting Corbitt and Raya’s assertion that

they were not fired for the reasons proffered by Home Depot. Home Depot contends

that Corbitt and Raya were terminated in part because they gave unauthorized ten

percent discounts to contractors, associates, family members, and a competitor in

violation of its markdown policy. In response, Corbitt and Raya have produced

evidence showing that these markdowns were in fact made pursuant to Home Depot’s

policies. They have offered their statements that Dardas approved the contractor

discounts and the sales to Midway Lumber. Dardas himself admitted to approving

a matching Lowe’s ten percent discount, a new commercial credit card account ten

percent discount, and quarterly contractor discounts. Although Dardas directly denies

approving certain markdowns, there is a factual issue whether these markdowns in

fact occurred and whether they were authorized by Dardas.

Other employees also confirmed approval by Dardas of the general ten percent

contractor discount.19 For instance, there is evidence from statements of employees

such as Todd Saddler and Sam Power that other store managers within the district,

such as Sandy Snyder and Rick Liska, gave regular ten percent discounts to

contractors. Polo Cutts stated that Dardas had challenged stores in the district to meet

19
Corbitt noted during his deposition testimony that after he and Raya were fired, few
managers would admit that they had approved markdowns.

49
and beat competition with discounts that protected the bottom line. Taylor Morgan,

Dan Schulte, John Vaughan, Scott Gayle, and Rick Liska provided statements that

Dardas had encouraged contractor discounts in the district to compete with Lowe’s.

As to the sales to a competitor, Midway Lumber, Calhoun testified that she in

fact witnessed Dardas’ approval of the Midway Lumber sales to Raya. This approval

was also confirmed by Scott Gayle. Thus, Corbitt and Raya have provided

considerable evidence that, when construed in the light most favorable to them, raises

a genuine issue of material fact whether they violated Home Depot’s markdown and

competitor sales policies.

Moreover, there is question from the record whether Home Depot even had a

policy prohibiting the actions for which Corbitt and Raya were purportedly

terminated. For instance, Keglovitz admitted there is no Home Depot policy against

giving a competitor a discount.

Hall stated that Home Depot had a “meet and beat” policy such that if a

customer showed that a competitor had a lower price, Home Depot would beat that

price on identical in-stock merchandise by ten percent and meet that price on all

special order merchandise, installations, or other special order products, except

lumber. Further, if a markdown sale by a store manager was approved by the district

50
manager, any violation of a Home Depot policy would be attributed to the district

manager who approved it and not to the store manager.

Notably, a written copy of Home Depot’s markdown policy was not included

in the record on appeal. Additionally, Corbitt’s and Raya’s termination notices

indicate that any policy violations should be specifically identified, but in the spaces

designated for such specifications, the notices state generally “Violation of Company

Policy.” Construing all of this evidence in the light most favorable to Corbitt and

Raya, a jury could reasonably infer that the supposedly unauthorized markdowns

were not what truly motivated Home Depot to terminate Corbitt and Raya.

Home Depot offered as an additional legitimate, non-retaliatory reason that

Corbitt and Raya had used the company Nextel phones improperly by retaining

phones from stores which they had left and by using these phones for personal

business. However, Corbitt and Raya have both provided statements explaining that

the continued use of the Nextel phones from their previous stores was authorized by

the incoming store managers and was done for legitimate business reasons. They also

both denied using the company phones for personal business. In contrast, Home

Depot has not explained which specific policy Corbitt and Raya violated in using the

Nextel phones, nor has it provided evidence that such use was a terminable offense.

In any event, a reasonable jury could find that such a minor policy violation would

51
not realistically motivate an employer to terminate two store managers with over ten

years of service.

The source of Home Depot’s legitimate, non-retaliatory reasons is the Hall

investigation. Significantly, the Hall investigation itself is riddled with

inconsistencies and contradictions which raise significant doubts about its legitimacy.

First, Corbitt and Raya note that while Home Depot contends that Hall began his

investigation into impermissible markdowns in late spring of 2005, the earliest-dated

document in his investigation notes is dated September 28, 2005. In addition, several

documents within Hall’s investigation report, upon which the decisionmakers

purportedly relied to make the termination decisions, are dated after Corbitt’s and

Raya’s terminations on December 13, 2005. In her deposition, Keglovitz specifically

pointed to these documents, some of which bore the post-termination dates, as what

she reviewed in reaching her decision to recommend termination. Also, Hall’s notes

are far more detailed regarding alleged policy violations by Corbitt and Raya than any

other employee, even though the investigation was supposedly district-wide. Despite

the fact that Hall allegedly never particularly focused his investigation on Corbitt and

Raya, these were the only two employees terminated.

The legitimacy of the investigation is further rendered questionable by the fact

that there is no record of the formal complaint lodged by Calhoun on behalf of Corbitt

52
and Raya in Home Depot’s files; Corbitt and Raya were terminated on the exact same

day with almost identical notices listing exactly the same reasons for termination; no

specific policy violations were listed on the notices even when the forms stated that

such violations should be specified; Cavaluzzi and McLaughlin signed and delivered

these notices to Corbitt and Raya; and the record of the complaints and actions taken

by Calhoun as to Cavaluzzi’s sexual harassment, which she maintained at the Home

Depot store, have never been produced. Further there is confusion and inconsistency

in the testimony of Keglovitz and Hall as to what the Home Depot policy is and

whether it was in fact violated by Corbitt and Raya. Corbitt and Raya’s contention

that Cavaluzzi and McLaughlin used the Hall investigation as a vehicle to effect their

terminations is supported by the lack of any indication in the record that Keglovitz,

Powers, Taylor, or Goldsmith, the corporate officers who approved the

recommendation to terminate Corbitt and Raya, conducted any independent

investigation of the matter. Instead, the decision was made based on input from a

small group of managers, which included among their number the accused perpetrator

of the sexual harassment, Cavaluzzi, one of his business partners in the region who

had refused to take, and had blocked, any action to stop the inappropriate behavior,

McLaughlin, and the Hall report in the formulation of which McLaughlin had been

a participant. The district court found that Corbitt and Raya had not submitted any

53
evidence to demonstrate that this investigation was a sham; however, a jury could

reasonably infer from the evidence that Corbitt and Raya were being improperly

targeted for investigation and termination by Cavaluzzi and McLaughlin.

Based on this evidence, there is a genuine issue whether Home Depot’s

proffered reasons for terminating Corbitt and Raya were pretext for retaliation. In

granting summary judgment for Home Depot, the district court appears not to have

drawn all reasonable inferences in the light most favorable to Corbitt and Raya and

instead improperly weighed the evidence. Therefore, we must reverse the grant of

summary judgment to Home Depot on Corbitt and Raya’s claim of retaliation.

C. State Law Claims

Count Three of the Appellants’ Complaint alleges four state law claims against

Home Depot in a single count: assault and battery; outrage; negligent and wanton

hiring, retaining, training and supervision; and invasion of privacy. Count Three

reads as follows:

Count Three
(State Law Claims)
----------------------------------------
53. [Appellants] adopt and incorporate the allegations set forth in
this Complaint.
54. Assault and Battery: The conduct of Home Depot’s agent,
Cavaluzzi, constituted assaults and batteries against the [Appellants] and
invasions of the [Appellants’] privacy.

54
 55. The assaults and batteries of Cavaluzzi were conducted in
rudeness and in a hostile manner. Home Depot condoned or ratified
such assaults and batteries.
56. Outrage: The Defendant recklessly and/or intentionally
caused the [Appellants] to suffer severe emotional distress through the
Defendant’s extreme and outrageous conduct.
57. Negligent and Wanton Hiring, Retaining, Training and
Supervision: Defendant Home Depot negligently and wantonly hired,
retained, trained, and supervised Cavaluzzi thereby causing the
[Appellants] to suffer severe emotional distress.
58. Invasion of Privacy: The conduct of Home Depot’s agent,
Cavaluzzi, constituted a wrongful intrusion and invasion of the
[Appellants’] privacy. Cavaluzzi’s wrongful acts were committed in the
line and scope of the [sic] his employment with Home Depot; or
Cavaluzzi’s wrongful acts were committed in furtherance of the business
of the Home Depot; or Home Depot participated in, authorized, or
ratified such wrongful acts.
59. As a proximate consequence of the aforedescribed conduct
of Defendant, [Appellants] have incurred great mental and emotional
distress and have lost earnings from their employment. [Appellants]
claim punitive damages.

(R.1 at 14-15.) Thus, paragraph 53 of Count Three incorporates all allegations in the

Complaint, including those relevant only to Count One, a federal harassment and

hostile work environment claim, and Count Two, a federal retaliation claim.

The Complaint is a classic example of shotgun pleading. First, it alleges all

state law claims in a single count. See Cesnik v. Edgewood Baptist Church, 88 F.3d

902, 905 (11th Cir. 1996) (lamenting that a Complaint was “framed in complete

disregard of the principle that separate, discrete causes of action should be plead in

separate counts”) (citation omitted); Anderson v. Dist. Bd. of Trs., 77 F.3d 364, 366-

55
67 (11th Cir. 1996) (finding that failure to “present each claim for relief in a separate

count, as required by Rule 10(b),” constitutes shotgun pleading and undermines the

ability of a court to administer justice).

Second, each count incorporates by reference all allegations of the previous

counts. As a consequence, it is impossible to determine the factual basis for each

claim. We have roundly condemned this type of pleading. Strategic Income Fund,

L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir. 2002) (“The

typical shotgun complaint contains several counts, each one incorporating by

reference the allegations of its predecessors, leading to a situation where most of the

counts . . . contain irrelevant factual allegations and legal conclusions.”).

Finally, pleading multiple assaults and batteries as one claim violates Federal

Rules of Civil Procedure 10(b)’s clear command that, “each claim founded on a

separate transaction or occurrence . . . must be stated in a separate claim or defense.”

The district court granted summary judgment on the Appellants’ claims of

assault and battery, invasion of privacy, and outrage on the basis that the Appellants

had not shown that Home Depot could be vicariously liable for the conduct of

56
Cavaluzzi.20 Under Alabama law,21 an employer can be held vicariously liable for the

intentional torts of its employee if it ratifies its employee’s torts. Machen v.

Childersburg Bancorporation, Inc., 761 So. 2d 981, 984-85 (Ala. 1999). To show

that an employer ratified its employee’s torts, a plaintiff must show, among other

things, that the employer “had actual knowledge of the tortious conduct of the

offending employee. . . .” Id. (quoting Potts v. BE & K Constr. Co., 604 So. 2d 398,

400 (Ala. 1992)). The district court concluded that Home Depot did not have “actual

knowledge” of the tortious conduct of Cavaluzzi until November of 2005, and that

at that point it took adequate steps to remedy the situation. Accordingly, the district

court concluded that summary judgment was appropriate for the assault and battery,

invasion of privacy, and outrage claims because Home Depot was not vicariously

liable for Cavaluzzi’s conduct under Alabama law. The district court additionally

held that summary judgment was appropriate on the invasion of privacy and outrage

20
The parties settled the negligent hiring, retention, training, and supervision claim; it is not
before us on this appeal.
21
Only Appellants’ Alabama tort law claims are before us. Although the Appellants
included claims under the Florida Civil Rights Act in the Second Amended Pretrial Order (R.135
at 21-22), the district court granted summary judgment on those claims (R.141 at 34 n.6), and the
Appellants do not challenge this ruling on appeal. Therefore, we consider any argument that
summary judgment on the Florida Civil Rights Act claims was in error abandoned, and focus solely
on the claims of assault and battery, invasion of privacy, and outrage claims alleged under Alabama
law. See Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1274 n.4 (11th Cir. 2008) (argument
abandoned if not presented in brief on appeal).

57
claims because the conduct alleged was not severe enough to constitute either

invasion of privacy or outrage under Alabama law.

The Appellants make only two arguments on appeal in support of their

contention that summary judgment on its Alabama tort claims was inappropriate.

First, the Appellants argue that Home Depot had actual knowledge of the tortious

conduct when Raya and Corbitt told Calhoun of Cavaluzzi’s conduct in April and

June of 2005, respectively. The Appellants argue that, because Home Depot had

actual knowledge of Cavaluzzi’s tortious conduct, it ratified the torts under Alabama

law, and summary judgment was inappropriate for the assault and battery, invasion

of privacy, and outrage claims. Second, Appellants argue that the tortious conduct

at issue was severe enough to constitute an invasion of privacy and outrage under

Alabama law.22

We affirm the district court’s grant of summary judgment on the assault and

battery claims because there is no record evidence to support the only argument that

Appellants make on appeal. We affirm the district court’s grant of summary

judgment on the invasion of privacy claim because we are not able to discern the

factual basis for the invasion of privacy claim. Thus, the Complaint fails to state a

22
We consider any other argument that the district court erred in granting summary judgment
on the Alabama tort claims abandoned. See Rioux v. City of Atlanta, 520 F.3d 1269, 1274 n.4 (11th
Cir. 2008) (argument abandoned if not presented in brief on appeal).

58
claim. And we affirm the grant of summary judgment on the outrage claim because

there is no record evidence of one element of the claim. We have no occasion to

decide whether shotgun pleading is in and of itself an appropriate basis for affirming

the grant of summary judgment on any of the claims. By the same token, we have no

occasion to decide whether Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d

541, 542 (11th Cir. 2002) (en banc) abrogates the remand-for-repleading remedy for

shotgun pleading that we applied in Magluta v. Samples, 256 F.3d 1282, 1284-85

(11th Cir. 2001).

We consider in turn each of the three state law claims before us.

1. Assaults and Batteries

First, we seek to determine what tortious conduct underlies the assault and

battery claims. Second, we determine whether there is record evidence that Home

Depot had “actual knowledge” of Cavaluzzi’s tortious conduct, as the Appellants

contend, from the Appellants’ discussions with Calhoun in April and June of 2005.

The only argument Appellants make on appeal that Home Depot had “actual

knowledge” of the assaults and batteries is that there is record evidence that

Appellants told Calhoun about them in April and June of 2005. (Appellant’s Br. at

28.) We limit our review to the merits of this one argument. See Sepulveda v. U.S.

59
Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (“When an appellant fails to

offer argument on an issue, that issue is abandoned.”) (citations omitted).

The Complaint indicates that the Appellants claim more than one assault and

battery because Count Three speaks of assaults and batteries in the plural. But, there

is no indication in the Complaint of how many or when they occurred. We turn to the

Second Amended Pretrial Order for clarification. There we find only the following

as the factual basis for the assault and battery claims: “All admissible facts relevant

to whether Mr. Cavaluzzi touched the [Appellants] or their clothes in rudeness, in

anger, or in a hostile manner.” (R.135 at 26.) In the Appellants’ Opposition to

Summary Judgment in the district court, however, the Appellants asserted three

assault and battery claims under Alabama law.23 (R.92 at 60.) First, Cavaluzzi

massaged Corbitt’s belly at the Mobile Montlimar store in August of 2005. (Id. at 6,

60.) Second, Cavaluzzi massaged Raya’s leg at the Daphne store in March of 2005.

(Id. at 7, 60.) And third, he massaged Raya’s neck and shoulder at the Lake Forest

Country Club on August 26, 2005. (Id. at 9, 60.)

23
We do not suggest that deficient pleadings can be corrected in a party’s Opposition to
Summary Judgment papers. But, in reviewing the district court’s order granting summary judgment,
we look to the Appellants’ Opposition to Summary Judgment because it contains the arguments
presented to the district court. See United States v. Oakley, 744 F.2d 1553, 1556 (11th Cir. 1984)
(“[A]n appellate court, in reviewing a grant of summary judgment, can only review the matters
presented to the district court.”) (citation omitted).

60
 Having identified the tortious conduct underlying the Appellants’ three assault

and battery claims, we next look to see whether there is record evidence that Home

Depot had “actual knowledge” of the tortious conduct. We need not reach the issue

of whether Calhoun was the correct person to notify about this conduct, as there is no

evidence in the record that the Appellants actually told Calhoun about the tortious

conduct now underlying the assault and battery claims. The conduct underlying two

of the claims, Cavaluzzi’s belly rub of Corbitt, and the neck and shoulder massage of

Raya at Lake Forest Country Club, occurred in August 2005. The Appellants argue

that their April and June 2005 discussions with Calhoun gave Home Depot “actual

knowledge” of Cavaluzzi’s August 2005 conduct. Home Depot, however, could not

have had “actual knowledge” of Cavaluzzi’s August 2005 tortious conduct based on

the Appellants’ discussions with Calhoun at least two months prior to the tortious

conduct. Additionally, there is no evidence that Raya ever told Calhoun during his

April 2005 conversation with her about the March 2005 leg rub. In his deposition,

Raya does not say that he told Calhoun about the leg rub. (See R.111 at 23.) And,

Calhoun, when discussing what Raya told her in April 2005, says nothing of the leg

rub. (See R.93 at 17-18.) There is no evidence, therefore, that either Raya or Corbitt

told Calhoun in April or June of 2005 about the conduct underlying their assault and

battery claims.

61
 Because there is no evidence in the record that the Appellants actually told

Calhoun in April and June of 2005 about the tortious conduct underlying their assault

and battery claims, we conclude that the Appellants have not shown that Home Depot

had “actual knowledge” of the tortious conduct, and thus ratified the alleged assaults

and batteries of its employee, Cavaluzzi. Accordingly, the district court properly

granted Home Depot summary judgment on the assault and battery claims.

2. Invasion of Privacy

The court granted summary judgment on the invasion of privacy claim on the

ground that the alleged conduct did not rise to the level of an invasion of privacy tort

under Alabama law.

When reviewing a grant of summary judgment, we may affirm on any legal

ground supported by the record, regardless of whether the district court relied on that

ground. McCabe v. Sharrett, 12 F.3d 1558, 1560 (11th Cir. 1994) (citing Davis v.

Liberty Mut. Ins. Co., 525 F.2d 1204, 1207 (5th Cir. 1976)). Accordingly, we affirm

the grant of summary judgment on the ground that the Appellants have failed to state

a claim for invasion of privacy. Indeed, the parties and district court have hinted that

the true dispute at the summary judgment stage was whether the Appellants had failed

to state a claim. (R.86 at 46) (Home Depot’s Motion for Summary Judgment argues

that “Plaintiffs’ allegations fail to” constitute an invasion of privacy.) (emphasis

62
added); (R.141 at 35) (District court’s Order holding that “alleged conduct is

insufficient” and so the claim is “dismissed on this basis.”) (emphasis added);

(Appellee’s Br. at 44) (District court “properly found that the Plaintiffs’ allegations

failed” to constitute an invasion of privacy.”) (emphasis added).24

We have held that a Complaint “requires more than labels and conclusions, and

a formulaic recitation of the elements of a cause of action will not do.” Wilchombe

v. TeeVee Toons, Inc., 555 F.3d 949, 958 (11th Cir. 2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 553, 127 S. Ct. 1955, 1965 (2007)). Dismissal for failure to

state a claim is proper if the factual allegations are not “enough to raise a right to

relief above the speculative level.” Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295

(11th Cir. 2007) (quoting Twombly, 550 U.S. at 555, 127 S. Ct. at 1965). In this case,

24
Although we can affirm for any reason, even one not relied on by the district court,
McCabe, 12 F.3d at 1560, or on a ground not argued before the district court, Bauer v. United States,
45 F.3d 44, 46 (5th Cir. 1979), the dissent would reverse on the ground that Home Depot has waived
or abandoned its defense of failure to state a claim. While we agree with the dissent that Blue Cross
& Blue Shield of Ala v. Sanders, 138 F.3d 1347 (11th Cir. 1998) and McGinnis v. Ingram Equip. Co.,
Inc., 918 F.2d 1491, 1494 (11th Cir. 1990) hold that an appellant’s waiver or abandonment of the
defense of failure to state a claim can preclude our review of the merits of that defense, those cases
do not address the power of an appellate court to affirm for any reason. Additionally, we disagree
with the dissent that the parties and district court used “allegations” synonymously with “record
evidence.” Because the parties and the district court repeatedly discussed whether the allegations
of invasion of privacy were sufficient, and because the defense of failure to state a claim was
properly asserted under Rule 12(h)(2), we disagree with the dissent’s view that affirming because
the pleadings fail to state a claim for invasion of privacy would constitute an unjust or unfair surprise
to the Appellants.

63
the Appellants have not alleged any factual support for their invasion of privacy

claim, and therefore dismissal for failure to state a claim is appropriate.

The Appellants’ Complaint merely states:

58. Invasion of Privacy: The conduct of Home Depot’s agent,
Cavaluzzi, constituted a wrongful intrusion and invasion of the
[Appellants’] privacy. Cavaluzzi’s wrongful acts were committed in the
line and scope of the [sic] his employment with Home Depot; or
Cavaluzzi’s wrongful acts were committed in furtherance of the business
of the Home Depot; or Home Depot participated in, authorized, or
ratified such wrongful acts.

(R.1 at 15.) The Second Amended Pretrial Order is no more helpful than the

Complaint, as it provides as the factual basis for the invasion of privacy claim: “All

admissible facts relevant to whether Mr. Cavaluzzi intentionally intruded physically

or otherwise, upon the solitude or seclusion of the Plaintiffs or their private affairs or

concerns.” (R.135 at 27.) Because the Appellants have failed to allege what the

factual basis is for their invasion of privacy claim, we conclude that they have failed

to state a claim upon which relief can be granted, and thus their claim should have

been dismissed. On that basis, we affirm the district court’s grant of summary

judgment.

3. Outrage

The outrage claim suffers from the same pleading deficiencies as the invasion

of privacy claim. In addition to failing to allege a factual basis for the claim, the

64
Appellants have failed to present any evidence of one necessary element of this tort:

severe emotional distress. Absent evidence of severe emotional distress, summary

judgment must be granted. McIsaac v. WZEW-FM Corp., 495 So. 2d 649, 651 (Ala.

1986). Therefore, we affirm the grant of summary judgment to Home Depot on the

Appellants’ claim of outrage.

IV. CONCLUSION

Based on the foregoing, we REVERSE the grant of summary judgment to

Home Depot on Corbitt and Raya’s Title VII claim of retaliation. We AFFIRM the

grants of summary judgment on the claim of hostile work environment sexual

harassment, as well as on the state law claims of assault and battery, invasion of

privacy, and outrage. We REMAND for further proceedings consistent with this

opinion.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.

65
FAWSETT, District Judge, concurring in part and dissenting in part:

While I join Parts I, II, and III.B of the majority opinion, I respectfully dissent

from Part III.A concerning the hostile work environment sexual harassment claim and

those portions of Part III.C which concern the Alabama tort claims of assault and

battery and invasion of privacy.25 Regarding the former section, the majority decides

factual matters which should be reserved for jury determination. With respect to the

latter section, the majority disposes of the state law claims on an improper and

inequitable procedural basis without permitting the Appellants the opportunity to cure

the technical defects found in the complaint.

I. Hostile Work Environment Sexual Harassment

When deciding a motion for summary judgment, “the judge’s function is not

himself to weigh the evidence and determine the truth of the matter but to determine

whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249, 106 S. Ct. 2505, 2511 (1986). As explained by the United States Supreme

Court:

Credibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not
those of a judge, whether he is ruling on a motion for summary judgment

25
I concur with Part III.C as to its disposition of the claim of outrage due to the lack of
record evidence of severe emotional distress.

66
 or for a directed verdict. The evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.

Id. at 255, 106 S. Ct. at 2513 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-

59, 90 S. Ct. 1598, 1608-09 (1970)). Therefore, “[i]f a reasonable fact finder

evaluating the evidence could draw more than one inference from the facts, and if that

inference introduces a genuine issue of material fact, then the court should not grant

summary judgment.” Allen v. Bd. of Pub. Educ. for Bibb County, Ga., 495 F.3d 1306,

1315 (11th Cir. 2007) (citing Samples ex rel. Samples v. City of Atlanta, Ga., 846

F.2d 1328, 1330 (11th Cir. 1988)). The substantive law identifies which facts are

material to a given cause of action. Anderson, 477 U.S. at 248, 106 S. Ct. at 2510.

Title VII prohibits discrimination “against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).

As the Supreme Court has explained, “[t]he phrase ‘terms, conditions, or privileges

of employment’ evinces a congressional intent to strike at the entire spectrum of

disparate treatment of men and women in employment, which includes requiring

people to work in a discriminatorily hostile or abusive environment.” Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370 (1993) (citation and quotation

marks omitted). To determine whether the challenged conduct constitutes sexual

67
harassment, a court should consider the conduct in context, rather than as separate

and isolated acts, and determine “under the totality of the circumstances” whether it

is “sufficiently severe or pervasive to alter the terms or conditions of the plaintiff’s

employment and create a hostile or abusive working environment.” Mendoza v.

Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999) (en banc) (citing Allen v. Tyson

Foods, 121 F.3d 642, 647 (11th Cir. 1997)).

The majority begins its analysis of the Appellants’ sexual harassment claims

by first eliminating from its consideration statements and conduct that it deems not

to be of a sexual or gender-related nature. According to the majority, most of

Cavaluzzi’s complained-of conduct constitutes mere compliments or flirtations which

are not actionable under Title VII. However, Cavaluzzi’s conduct should not so

easily be cast in this light.

According to the record evidence both Appellants stated that shortly after

Cavaluzzi was assigned to their district, he began harassing them with telephone calls

relating to business which then degenerated into inappropriate sexual comments and

suggestions. Cavaluzzi’s behavior then escalated into repeated telephone calls filled

with sexually suggestive comments, with the addition of a pattern of inappropriate

touchings on occasions when Cavaluzzi was in a meeting attended by the Appellants

or when Cavaluzzi visited these managers’ respective Home Depot stores. The

68
touchings, although intermittent and opportunistic, were again followed with constant

telephone calls of a sexual nature to each store manager. These calls ranged from two

to three times a week to twelve times a week during the period from March, when

Cavaluzzi arrived in their district, into November of 2005, shortly before both

Appellants were fired. After the initial calls, Cavaluzzi discussed no business and

repeatedly made sexually suggestive comments to these subordinate employees.

Although the majority concludes as a matter of law that most of these comments were

mere flirtations, factual issues such as the overall context in which such comments

were made, as well as Cavaluzzi’s demeanor and intonation, preclude this

determination.

Certainly there is a difference between a coworker cheerfully stating, “Hey, I

really like your pants,” and a coworker stating, “I really like how you look in those

pants,” coupled with several more overtly sexual comments. Similarly, a coworker’s

invitation to join him in a hotel room may be friendly and professional or may be

laden with innuendo, particularly when such invitations have been repeatedly made

and have been coupled with other sexually charged comments. Courts should be

hesitant to supplant the role of jurors by making conclusions as to the proper

interpretation of such facts.

69
 In the instant case the record shows that Cavaluzzi made many statements that,

when considered in isolation, could be interpreted as either merely complimentary or

overtly sexual. The interpretation depends on the context. The majority, instead of

viewing the evidence in the light most favorable to the non-moving parties and

drawing all reasonable inferences in their favor, selects individual statements from

among several made during a conversation or meeting, examines these statements out

of context and in a vacuum, and then determines that they are not gender-related. The

record, however, contains ample evidence from which a reasonable jury could

determine that the comments of Cavaluzzi, when viewed in context, were part of a

persistent effort to enter an unwelcomed sexual relationship with his subordinate

employees and were not merely innocent, innocuous, flirtatious, or purely

complimentary.

For example, Cavaluzzi said that he liked Corbitt’s “baby face,” that Corbitt

was “small and cute,” and that he liked the way Corbitt dressed. When viewed in

isolation, such comments could be construed as merely complimentary. However,

when these statement are viewed in context with other comments Cavaluzzi made

during the same conversations, the sexual overtures of the statements becomes

pronounced. For instance in these conversations, Cavaluzzi told Corbitt that Corbitt

was not Cavaluzzi’s “usual type” but he “could not stop thinking about” Corbitt, that

70
Cavaluzzi knew Corbitt was not gay but Cavaluzzi could show Corbitt how, and he

would “like it.” In addition, Cavaluzzi asked Corbitt if he “wore boxers or briefs or

nothing,” and if Corbitt colored his hair, remarking that it must be Corbitt’s “natural

color down there too.” He asked Corbitt if he “wasn’t bored with the same woman,”

referring to Corbitt’s wife, asked if Corbitt and his wife “swing,” and told Corbitt to

visit specified gay websites, saying Corbitt “should look at them” so Corbitt “could

see what he is talking about.”

Similarly, Cavaluzzi called Raya several times a week asking such things as

what Raya was wearing and if he was wearing the pants that Cavaluzzi liked.

Cavaluzzi stated that Raya “always dressed so nice,” “was cute,” and had beautiful

hair. These statements, when examined alone, could be deemed mere flirtations;

however, the record reflects such comments were accompanied by Cavaluzzi telling

Raya, “I like the rough look,” and “you’re the Italian heifer that I like.” When viewed

in context an inappropriately gender-based and sexual meaning may be reasonably

inferred from such statements. This inference is strengthened by the pervasive and

repetitive nature of Cavaluzzi’s comments as well as his inappropriate touchings of

his two subordinate employees.

The true import of any statement is not clear without context. As the Supreme

Court has instructed:

71
 In same-sex (as in all) harassment cases, [the severe or pervasive]
inquiry requires careful consideration of the social context in which
particular behavior occurs and is experienced by its target. . . . The real
social impact of workplace behavior often depends on a constellation of
surrounding circumstances, expectations, and relationships which are
not fully captured by a simple recitation of the words used or the
physical acts performed. Common sense, and an appropriate sensitivity
to social context, will enable courts and juries to distinguish between
simple teasing or roughhousing among members of the same sex, and
conduct which a reasonable person in the plaintiff’s position would find
severely hostile or abusive.

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81-82, 118 S. Ct. 998, 1003

(1998) (emphasis added); see also Draper v. Coeur Rochester, Inc., 147 F.3d 1104,

1109 (9th Cir. 1998) (“Discriminatory behavior comes in all shapes and sizes, and

what might be an innocuous occurrence in some circumstances may, in the context

of a pattern of discriminatory harassment, take on an altogether different character,

causing a worker to feel demeaned, humiliated, or intimidated on account of her

gender.”). The record in the instant case reveals a multitude of inappropriate,

sexually-based comments made by Cavaluzzi to the claimants in this case. Select

comments, pulled from their context and deemed facially inoffensive by the majority,

demonstrate an impermissible sex bias when viewed in context. In finding otherwise,

the majority weighs the evidence, disregards context, and violates a basic tenet of

summary judgment jurisprudence by drawing inferences from the selected facts in

favor of the movant-Appellee rather than in favor of the nonmovant-Appellants.

72
 In addition, the majority dismisses some of the challenged touchings as not

sexual in nature. For instance, the majority concludes that Cavaluzzi putting his arm

around Raya is not sexual and states, “if a heterosexual man had done this, Raya

would likely not have thought anything of it.” The majority glosses over the fact that

at the same time Cavaluzzi put his arm around Raya’s shoulders, he put his hand on

Raya’s thigh under a table where they were seated and where others who were present

ostensibly could not see. Both Appellants reasonably interpreted Cavaluzzi’s conduct

toward them as solicitations for sex and feared being fired if they complained. The

majority also glosses over the number of touchings and the full body hug given by

Cavaluzzi to Raya in which Cavaluzzi pushed himself into Raya’s “privates.”

Moreover, Cavaluzzi’s conduct towards Raya caused other store managers in the

region to start calling Raya “Lenny’s Bitch,” which suggests that the conduct was in

fact sexual in nature to other observers. In any event, a reasonable jury could reach

this conclusion.26

26
The record reveals that in late March of 2005, during a regional managers’ meeting,
Cavaluzzi came up to both Appellants and began playing with their hair and rubbing their shoulders,
giving them “something akin to an intimate massage.” Later that evening Corbitt was in his car, and
Cavaluzzi reached in and massaged Corbitt’s neck and shoulders, inviting him to Cavaluzzi’s hotel
room for drinks. Around the same time, Cavaluzzi entered a room in which Raya was seated at a
table with another employee, sat down next to Raya, put his left arm on Raya’s shoulder, and then
at the same time put his right hand on Raya’s thigh under the table. In late April of 2005, Cavaluzzi
approached Raya from behind and ran his fingers through Raya’s hair in front of other regional
managers. At this point, the other managers began referring to Raya as “Lenny’s Bitch.” At a store
(continued...)

73
 Next, the majority determines that the conduct in question is not so severe or

pervasive as to constitute actionable harassment. In reaching its decision, the

majority concludes that the Appellants in their sworn answers to interrogatories

exaggerate the number of times that Cavaluzzi harassed them. This is one inference

that may be derived from the record. However, another reasonable inference is that

the conduct occurred exactly as many times as the Appellants contend that it did. A

trial by jury is the appropriate forum to choose which inference to draw from the

record. This issue should not be decided by a court as a matter of law by rejecting

sworn testimony of record as unworthy of belief on a motion for summary judgment.

After whittling down the conduct of Cavaluzzi that it would consider in its

analysis, the majority concludes that the conduct alleged by the Appellants is

26
(...continued)
opening in June, Cavaluzzi gave Raya a full body hug, and started massaging Raya’s back. During
this hug, Cavaluzzi pressed his whole body against Raya such that Cavaluzzi’s body was touching
Raya’s “privates” during the hug. During the first week of August, Corbitt was working alone in the
training room of the Montlimar store when Cavaluzzi “snuck up” behind him, put one of his hands
on Corbitt’s shoulder, and rubbed Corbitt’s stomach with the other. At the end of August, during
a managers’ meeting, Cavaluzzi came up behind Raya while Raya was seated. Cavaluzzi began
massaging Raya’s neck and shoulders while commenting that Raya was in good shape and felt
muscular and trim. Finally, in November, Corbitt attended a meeting with Cavaluzzi and two other
managers during which Cavaluzzi gave Corbitt a full body hug and rubbed his back, neck, head, and
shoulders. Thus, the record reveals, in addition to the constant, sexually-charged phone calls,
evidence of Cavaluzzi touching Corbitt at least four times and Raya at least five times in what a
reasonable jury could find to be a sexual manner.

74
“probably” not more severe than the conduct alleged in Gupta27 and Mendoza.28

According to the majority, certain of Cavaluzzi’s comments may have been

“relatively severe,” but most of these comments were not sex-based. Therefore, the

majority concludes that under an objective standard, “Cavaluzzi’s alleged sexual

harassment was not sufficiently severe or pervasive to support a hostile work

environment claim . . . .” I respectfully disagree.

The conduct in this case goes well beyond “ordinary socializing in the

workplace.” The Appellants found Cavaluzzi’s conduct offensive, and several of

their peers in management testified that they found the conduct to be offensive.

While the law utilizes an objective standard to evaluate hostile work environment

claims, this standard is justifiable only if it accurately reflects real-life workplace

conditions and expectations. When the objective “reasonable person” standard

becomes so divorced from reality that a reasonable person can be unreasonably

subjected to discriminatory conduct under the case law, the courts cease to give effect

to the statutory language and the remedial purpose of Title VII.

The record provides evidence from which a reasonable jury could conclude that

the Appellee’s regional human resources manager engaged in conduct which

27
Gupta v. Fla. Bd. of Regents, 212 F.3d 571 (11th Cir. 2000), abrogated on other grounds
as recognized in Crawford v. Carroll, 529 F.3d 961, 973-74 (11th Cir. 2008).
28
Mendoza, 195 F.3d 1238.

75
constituted sexual harassment and created an unreasonably hostile work environment

for two of his store managers. Because the majority opinion improperly removes the

resolution of factual matters from the jury, I dissent from Part III.A of the opinion.

II. State Law Claims of Assault and Battery and Invasion of Privacy

The majority concludes that: (1) summary judgment should be affirmed on the

state law claims of assault and battery because of the lack of record evidence of

ratification of Cavaluzzi’s conduct by Appellee, and (2) summary judgment should

be affirmed on the invasion of privacy claim because the majority is unable to discern

a factual basis for the claim and Appellants have failed to state a claim. Because the

record provides evidence of Appellee’s ratification of Cavaluzzi’s assaults and

batteries as well as support for the invasion of privacy claim, I must dissent.

On the one hand, the majority explains its decision affirming summary

judgment on the state law claims by describing these claims as shotgun pleadings

which make it “impossible to determine the factual basis for each claim”; on the other

hand, the majority disclaims using shotgun pleadings as a basis for its decision and

finds it has “no occasion to decide whether shotgun pleading is in and of itself an

appropriate basis for affirming the grant of summary judgment on any of the claims.”

The majority opinion states that summary judgment was properly granted on the

invasion of privacy claim because the majority is “not able to discern the factual

76
basis” for the claim. This is a hallmark of shotgun pleading analysis. Thus, despite

its proclamations to the contrary, the majority appears to affirm the grant of summary

judgment on the basis of shotgun pleading.

This Circuit has previously held that the appropriate remedy for shotgun

pleadings is not to dismiss the complaint but instead is to strike the complaint and

order a more definite statement. Magluta v. Samples, 256 F.3d 1282, 1284-85 (11th

Cir. 2001).29 For instance, in a case cited by the majority, Cesnik v. Edgewood

Baptist Church, 88 F.3d 902, 910-11 (11th Cir. 1996), the Court vacated summary

judgment and remanded the claims found to constitute shotgun pleadings to the

district court with instructions to require the plaintiffs to replead.30 Based on this

precedent, it is inappropriate to dismiss the state law claims and affirm summary

judgment on the basis of a “shotgun pleading.” Instead, the proper remedy would be

to vacate summary judgment on count three and remand to the district court with

directions to strike the state law claims and order the Appellants to replead.

29
As demonstrated by Wagner v. First Union Pharm. Corp., 464 F.3d 1273, 1279-80 & n.7
(11th Cir. 2006), Magluta appears to remain the applicable law governing the appropriate treatment
of shotgun pleadings even after this Circuit’s decision in Wagner v. Daewoo Heavy Indus. Am.
Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc) (finding a district court had no duty to sua
sponte grant leave to amend a complaint upon dismissal of the complaint).
30
The rule against shotgun pleadings addresses the problem of unclear, vague, or convoluted
pleadings which prevent a court from readily determining whether the pleadings state a claim. The
remedy of ordering a more definite statement directly addresses this problem, directs the plaintiff to
more clearly state its allegations, and then provides the court an opportunity to evaluate whether
more artfully drafted pleadings state a claim for which relief may be granted.

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Particularly at the summary judgment stage this result would be the more equitable

approach to the problem of inexact pleading to avoid wasting the large amount of

discovery already completed in this case.

In addition, the majority’s approach does not reflect the realities of federal

litigation. A significant portion of complaints filed in federal court could, in whole

or in part, meet the definition of “shotgun pleading.” Nevertheless, where the

meaning of the complaint is reasonably discernable, parties and courts tend to

proceed to discovery. Regardless of the propriety of this practice, affirming summary

judgment on the issue of “shotgun pleading” gives the defendant an incentive to

forego this pleading challenge at the proper stage and instead use it as insurance

against a district court ruling that is either adverse to it or favorable yet susceptible

to reversal on appeal. This gives defendants an unfair trump card to use throughout

the entire litigation, regardless of the procedural posture of the case or the

development of the record.

In the instant matter, the Appellee had an opportunity to raise a challenge to the

sufficiency of the pleadings through a motion to dismiss or strike but did not file such

motion with the district court. While the Appellee raised the affirmative defense of

failure to state a claim in its answer, this was one of fourteen boilerplate defenses in

the responsive pleading and was not asserted in a separate motion under Federal Rule

78
of Civil Procedure 12(b). Instead, the case proceeded on the complaint through

discovery, resulting in the development of a record which supplements and supports

the allegations of the complaint.31 It is unjust to turn a blind eye to this evidentiary

record and dismiss the case on a technical pleading violation.

This result is particularly unfair since the Appellants had no prior notice that

the affirmative defense of failure to state a claim would be considered on appeal.

Indeed, this Circuit has previously stated, “we will not decide whether the plaintiff

failed to state a claim unless the defendant preserved that defense in the district court

pursuant to Fed. R. Civ. P. 12(h)(2).” Blue Cross & Blue Shield of Ala. v. Sanders,

138 F.3d 1347, 1354 (11th Cir. 1998) (citations omitted); see also McGinnis v.

Ingram Equip. Co., Inc., 918 F.2d 1491, 1494 (11th Cir. 1990) (en banc) (finding a

boilerplate assertion of the defense to have been abandoned when not raised in any

motion and not incorporated into the pretrial order). Rule 12(h)(2) permits a party to

raise this defense through pleading, by motion under Rule 12(c), or at trial. Although

the Appellee asserted the defense in its answer, the defense was not specific to any

particular claim. Surely if the Appellants’ complaint is considered insufficient to

31
For example, the record reveals ample evidence supporting the Appellants’ claim for
invasion of privacy: Cavaluzzi repeatedly asked sexually suggestive questions about the Appellants’
marriages, apparel, bodies, sexual activities, and personal grooming habits. Such inquiries constitute
intrusions into the Appellants’ privacy under Alabama law. See, e.g., Ex parte Atmore Cmty. Hosp.,
719 So. 2d 1190, 1194 (Ala. 1998); McIsaac v. WZEW-FM Corp., 495 So. 2d 649, 651 (Ala. 1986);
Phillips v. Smalley Maint. Servs., Inc., 435 So. 2d 705, 708-09 (Ala. 1983).

79
provide proper notice of their state law claims, the statement “[w]ith respect to some

or all of [the Appellants’] claims, [the Appellants’] Complaint fails to state a claim

upon which relief may be granted” in the answer is insufficient to provide proper

notice of this affirmative defense.

In addition, the Appellee did not raise the issue of failure to state a claim in any

motion or argument to this Court or the court below. The Appellee refers to the

sufficiency of the Appellants’ “allegations” in its motion for summary judgment and

briefs on appeal, but it does so in relation to all of the Appellants’ claims and appears

to treat the term synonymously with “record evidence.”32 The words “shotgun

pleading” or “failure to state a claim” appear nowhere in the filings of the parties on

summary judgment or on appeal. Because the defense of failure to state a claim was

not previously raised in a manner providing adequate notice to the Appellants, it

should be deemed abandoned and not utilized as a basis to affirm summary judgment.

Moreover, the record reflects that the litigation below had proceeded well

32
For instance, in its motion for summary judgment, the Appellee discusses Corbitt’s and
Raya’s “allegations” of harassment and proceeds to cite record evidence as examples of these
“allegations.” (R.86-3 at 4-9, 13-16; see also id. at 28 (“Accepting [Appellants’] allegations as true,
for purposes of this motion only, the alleged conduct does not rise to the level of severity or
pervasiveness required within this Circuit.”).) The Appellee includes similar terminology in its Brief
on Appeal, using the word “allegations” to describe the record evidence and to argue that this
evidence does not meet the applicable legal standard. (Appellee’s Brief at 24-25, 27-29, 42-45.) In
fact, in its statement regarding oral argument, Appellee describes the state law issue as follows:
“[Appellants] could not prove state law claims of outrage or invasion of privacy or that Home Depot
ratified the alleged actions of the harasser.” (Id. at ii (emphasis added).)

80
beyond the pleading stage, was set for trial, and the parties had appeared before the

trial judge for a pretrial conference. The issue of a shotgun pleading was not raised

at the pretrial conference and was not incorporated into the pretrial order. Thus, the

Appellee’s motion for summary judgment, the trial court’s order on the motion, and

the arguments of the parties on appeal provided the Appellants with notice only that

the evidence underlying their claims was at issue. The Appellants did not have notice

that the technical sufficiency of their pleadings could be dispositive of their claims

at this stage of the litigation.

The majority does appear to delve briefly into the record to conclude that the

Appellee did not ratify Cavaluzzi’s assaults and batteries of the Appellants because

it had no actual notice of this conduct. To the contrary, the record demonstrates that

the Appellants spoke with several Home Depot managers and human resources

personnel on multiple occasions to complain about Cavaluzzi’s conduct, beginning

in April of 2005 for Raya and June of 2005 for Corbitt. The district manager and at

least two store human resources managers were directly apprised of the inappropriate

sexual harassment of the Appellants by Cavaluzzi. Additionally, a number of

members of management and human resources actually witnessed Cavaluzzi’s

81
touchings and inappropriate comments.33 These persons were designated under Home

Depot’s policy to receive and correct complaints of harassment; therefore, their

knowledge of Cavaluzzi’s conduct also may be attributed to Home Depot for

purposes of the state law claims. See Mardis v. Robbins Tire & Rubber Co., 669 So.

2d 885, 889 (Ala. 1995) (indicating that a complaint to a plant personnel manager

would constitute notice to the employer of harassing conduct); Breda v. Wolf Camera

& Video, 222 F.3d 886, 889-90 (11th Cir. 2000) (finding in a Title VII case that an

employer’s notice of harassing conduct is established when the employee reports the

conduct to a designated person set forth in the employer’s anti-harassment policy).

A reasonable jury could determine from this evidence that Home Depot had actual

knowledge of the assaults and batteries.

In its analysis, the majority improperly narrows the issue actually raised on

appeal by stating that “[t]he only argument Appellants make on appeal that Home

Depot had ‘actual knowledge’ of the assaults and batteries is that there is record

evidence that Appellants told Calhoun about them in April and June of 2005.”

Rather, the issue as stated by Appellants is: “The Trial Court erred by not recognizing

33
Further complaints about his conduct were made directly to Cavaluzzi, the person
designated by Appellee to enforce its human resource policies throughout the district. The record
reflects that Cavaluzzi has been transferred by Appellee to Appellants’ district after he had violated
a Home Depot’s policy by having an inappropriate relationship with a subordinate employee.

82
the Home Depot store managers and store HR managers as appropriate

representative[s] to receive and to discern sexual harassment complaints.”

(Appellants’ Brief at 28.) This is identical to the issue of the knowledge of members

of Home Depot management and human resources personnel developed in greater

detail in the portion of the Appellants’ Brief addressing the Faragher defense to

sexual harassment claims.34 (Id. at 18-20.)

The majority also states, “We need not reach the issue of whether Calhoun was

the correct person to notify about this conduct, as there is no evidence in the record

that the Appellants actually told Calhoun about the tortious conduct now underlying

the assault and battery claims.” First, the Appellants offered evidence that they told

Calhoun of Cavaluzzi’s inappropriate behavior, and a jury could reasonably infer that

these conversations included discussions of Cavaluzzi’s alleged assaults and batteries.

Secondly, this statement by the majority completely ignores the record evidence that

Calhoun actually witnessed this conduct. Thus, I cannot concur with the majority

opinion affirming summary judgment on these claims.

For these reasons, I respectfully dissent from the portion of Part III.C of the

majority opinion which affirms summary judgment on the state tort claims of assault

34
For example, with regards to the inappropriate conduct of Cavaluzzi, Appellants state that
“at least eight Home Depot store managers or store HR managers personally witnessed” such
conduct. (Appellants’ Brief at 18.)

83
and battery and invasion of privacy. I concur with the portion of Part III.C which

affirms summary judgment on the claim of outrage based on the lack of evidence in

the record demonstrating severe emotional distress.

84