Jeffry Smith v. Rock-Tenn Services, Inc.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0033p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

JEFFRY L. SMITH, ┐
Plaintiff-Appellee, │
│
│ No. 15-5534
v. │
>
│
ROCK-TENN SERVICES, INC., │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 3:12-cv-00616—John T. Nixon, District Judge.

Argued: January 15, 2016

Decided and Filed: February 10, 2016

Before: CLAY and ROGERS, Circuit Judges; THAPAR, District Judge.*
_________________

COUNSEL

ARGUED: Randall S. Thompson, HUSCH BLACKWELL LLP, St. Louis, Missouri, for
Appellant. Heather Moore Collins, COLLINS & HUNTER, PLLC, Brentwood, Tennessee, for
Appellee. ON BRIEF: Randall S. Thompson, HUSCH BLACKWELL LLP, St. Louis,
Missouri, Hillary L. Klein, HUSCH BLACKWELL LLP, Chattanooga, Tennessee, for
Appellant. Heather Moore Collins, COLLINS & HUNTER, PLLC, Brentwood, Tennessee, for
Appellee.

*The Honorable Amul R. Thapar, United States District Judge for the Eastern District of Kentucky, sitting
by designation.

1
No. 15-5534 Smith v. Rock-Tenn Services, Inc. Page 2

_________________

OPINION

_________________

CLAY, Circuit Judge. Defendant Rock-Tenn Services, Inc., Plaintiff Jeffry L. Smith’s
former employer, appeals the judgment entered by the district court on the jury verdict in favor
of Plaintiff on his sexual harassment claim alleging a hostile work environment brought pursuant
to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, et seq., as well as the district
court’s denial of its renewed motion for judgment as a matter of law and motion for a new trial.
For the reasons that follow, we AFFIRM.

BACKGROUND

Factual Background

Plaintiff began working for Defendant, a corrugated box company, on August 2, 2010.
Shortly after starting work at Defendant’s plant in Murfreesboro, Tennessee, Plaintiff underwent
orientation at which he learned about company safety policies, and received a company
handbook and the company’s sexual harassment policy. Plaintiff worked as a support technician
on a die cutter machine known as the “450” in the Converting Department, which his colleague
Clinton Gill operated. Plaintiff’s duties included loading boxes, helping run the machine, and
unjamming the machine when it got stuck. When he was needed, Plaintiff also worked on
another machine, known as the “303.” Each day began with a safety meeting, at which the team
discussed safety and any injuries that had occurred. Plaintiff testified that the Converting
Department was approximately 70% men and 30% women. The company’s HR manager
confirmed that women worked in the Converting Department.

In December 2010, Defendant’s employee Jim Leonard returned from medical leave. On
the first evening that Leonard was in the plant, Plaintiff observed Leonard “come up behind”
450 operator Clinton Gill, “grab[] him in the butt,” and then sniff his finger. (Trial Tr., R. 106 at
Page ID 875–76.) Plaintiff continued to associate with Leonard in short conversations. At some
point, Leonard came by Plaintiff’s workstation and “slapped [him] on the tail as he went by.”
(Id. at Page ID 877.) Plaintiff responded by pointing at Leonard, as a warning to “keep [his]
No. 15-5534 Smith v. Rock-Tenn Services, Inc. Page 3

hands off.” (Id.) Although Plaintiff thought that “everything would be okay after that,”
approximately a week later, Leonard came up behind Plaintiff again while Plaintiff was working
at the computer, and “grabbed [him] so hard on [the] butt that [his] tail was actually sore.” (Id.)
In response, Plaintiff grabbed Leonard by the arm, put his finger in Leonard’s face, and
demanded that Leonard never touch him again, stating, “[Y]ou’re going to cause somebody to
get hurt in here.” (Id.) According to Defendant’s sexual harassment policy, subjects of
harassment are supposed to speak directly to their harassers to ask that the conduct be stopped
before bringing their concerns to management. Plaintiff did not report either of these incidents
both because of the policy and because he thought Leonard would stop after the warnings.

About a month later, on Saturday, June 4, 2011, Plaintiff was working at the
303 machine. While he was bent over to load boxes onto a pallet, Leonard came up behind him
again, “grabbed [him] by [the] hips and started hunching on [him]” so that Leonard’s “privates”
were “up against [Plaintiff’s] tail.” (Id. at Page ID 879, 915.) Plaintiff turned around, grabbed
Leonard by the throat for about thirty seconds, lifted him off the ground, and “was just blessing
him out.” (Id. at Page ID 879.) Plaintiff reported the incident to Gill, who told Plaintiff to go
outside and calm down. When he returned, Leonard apologized to Plaintiff, saying, “I didn’t
know how far I could go with you.” (Id. at Page ID 880.) Plaintiff responded that that should
have been clear after the previous incident, and that if he touched Plaintiff again, someone was
going to get hurt. Plaintiff was so upset that Gill set him home.

Over the weekend, Plaintiff spoke to a friend and colleague, James Sims, who told plant
superintendent Scott Keck about the incident before Plaintiff arrived on the morning of Monday,
June 6, 2011. At the daily safety meeting, Plaintiff brought the incident to the attention of his
direct supervisor, Devonna Odum, who, according to Plaintiff’s testimony, stated to Plaintiff that
Leonard had “done . . . this again.” (Id. at Page ID 881.) Soon thereafter, plant superintendent
Keck called Plaintiff into his office, whereupon Plaintiff reported the incidents involving
Leonard. Keck stated that nothing could be done until the following Friday because his
supervisor, operations manager Bobby Hunter, was on vacation. At the conclusion of this
meeting, Keck sent Plaintiff back out to work in the same area as Leonard.
No. 15-5534 Smith v. Rock-Tenn Services, Inc. Page 4

While continuing to work in the same area as Leonard, Plaintiff was worried about
whether Leonard would come up behind him again, found it difficult to concentrate, neglected to
lock out a machine when cleaning it, got himself caught under a machine, and twice spent half an
hour cleaning jam-ups that would normally have taken him a minute to resolve. During that
week, Defendant sent Plaintiff and Leonard to get a hearing test together. Plaintiff testified that
he was beside himself and wanted to kill Leonard.

He continued to work within 10–15 yards of Leonard the following week. On
Wednesday, June 15, 2011, Plaintiff suffered an anxiety attack while at the hospital with his
brother. The following day, Plaintiff prepared a letter to management documenting the incidents
with Leonard. The letter alleged that Leonard had “done this to others after my 2nd Occurrence”
and that Leonard “carries a Knife in his pocket [and] was said to have pulled it on one of the
guys he’s done this to.” (Pl.’s App’x at 25.) The letter concluded:

I Jeff Smith am requesting a sick leave from 6–16 through 21st of June at which
time I have an appointment to seek counciling [sic] for the Sexual Harrasment
[sic] I have recieved [sic] before returning to work. I don’t feel I can do my job
safely and could put myself and others around me at risk because this has
consumed my thoughts. I like my job and most of the people and want to do my
best but can’t until I seek help.

(Id. at 26.) After a meeting with plant superintendent Scott Keck and operations manager Bobby
Hunter, Plaintiff’s request for leave was granted.

After receiving Plaintiff’s letter, four senior managers called a meeting with Leonard to
inquire about the incident. At that meeting, Leonard stated that Plaintiff had backed into him.
Management then began interviewing other employees in the Converting Department, none of
whom had witnessed the “hunching” incident. According to Hunter, Devonna Odum, Plaintiff’s
direct supervisor, had heard rumors about Leonard’s behavior regarding another employee,
Stephen Hackney. Hunter did not testify to the content of his conversation with Hackney.
According to Hunter, Clinton Gill reported a pinch in the side. When Hunter spoke to Nick
Clark, Hunter testified that Clark stated, “I already told Wade [Phillips, Defendant’s HR
manager] about it and it’s been handled.” (R. 107, Trial Tr. at Page ID 1033.) Phillips later
testified that the company handbook, which set forth policies for investigating complaints,
No. 15-5534 Smith v. Rock-Tenn Services, Inc. Page 5

including for sexual harassment, was “a guideline that could be followed” but was not always; in
Plaintiff’s case, Defendant did not procure written statements from any of the employees
interviewed or prepare an investigation report. (Id. at Page ID 960–61.) The only record of this
investigation was a page of handwritten notes. Although Hunter, Keck, and HR manager Wade
Phillips recommended that Leonard be terminated, general manager David McIntosh suspended
Leonard for a day and a half to two days on Thursday, June 16 and on Friday, June 17, 2011.
McIntosh testified that he “based [his] decision on the investigation of the Saturday night
occurrence” and “didn’t go back and investigate instances that had happened in the past.” (Id. at
Page ID 1058.) Although Phillips testified that Leonard’s pay was suspended while he was not
working, Leonard testified that it was not. He returned to the plant the following Monday.

When McIntosh imposed the suspension, his colleagues had not made him aware that
Leonard had been disciplined on March 22, 2011 for touching another worker, Kendrick Roper,
on his clothed backside when Roper was standing at the urinal. Roper, who later testified to
having heard of numerous incidents between Leonard and other men, reported the incident to his
supervisor, Devonna Odum. He was then called in to a meeting with Scott Keck and Bobby
Hunter, who did not ask for a written statement from him. Keck wrote up the incident on a form
and brought it to Leonard on the factory floor for his signature. The write-up was placed in
Leonard’s personnel file, which described the issue as “Horseplay – sexual harassment,” and
stated that Keck and Hunter had “met with Jim to address a complaint from a coworker about
unwanted contact which Jim deemed . . . horseplay. We reviewed the companys [sic] sexual
harrasment [sic] policy and Jim understood it.” (Tr. Ex. 12; Pl.’s App’x at 21.) The “Action to
Improve” was “No contact with any employees that would be interpreted as sexual harrasment
[sic].” (Id.) Above the signature boxes, a handwritten note stated, “Any future complaints
would be subject to termination of employment.” (Id.) However, Keck and Hunter did not
inform McIntosh, who was actually in charge of discipline, that the incident involving Roper had
occurred.

Plaintiff did not return to Rock-Tenn. He stated that he mostly sat at home for
approximately a year and half, went on Paxil, had difficulty sleeping, and experienced an anxiety
attack when someone came up behind him in the checkout aisle of the supermarket. Eventually,
No. 15-5534 Smith v. Rock-Tenn Services, Inc. Page 6

his short-term disability insurance ran out. Plaintiff’s licensed clinical social worker, who saw
him on thirteen occasions beginning on June 22, 2011, diagnosed him with post-traumatic stress
disorder. The social worker noted “sleep disturbances, uncontrollable thoughts about his
attacker, irritability and rage, panic attacks when . . . the obtrusive thoughts occur . . .
hypervigilance, loss of ability to concentrate, feelings of hopelessness and guilt and feeling
humiliated before his peers at work.” (R. 107, Trial Tr., at Page ID 1142.) Leonard was fired in
July 2013 after he admitted in a deposition in this litigation that he had “mooned” or touched
other men in the workplace. He testified that all of this conduct was directed towards men.

Procedural History

Plaintiff filed suit in the United States District Court for the Middle District of Tennessee
on June 15, 2012, alleging sexual harassment, wrongful termination, and retaliation under the
Tennessee Human Rights Act, T.C.A. § 4-21-101, et seq. After receiving a right-to-sue letter
from the EEOC, Plaintiff amended his complaint to add claims for hostile work environment and
constructive discharge under Title VII. On January 17, 2014, the district court granted partial
summary judgment to Defendant on the retaliation and constructive discharge claims under
Tennessee law and Title VII but denied summary judgment on the Title VII and Tennessee
Human Rights Act hostile work environment claims.

Prior to trial, Defendant moved in limine to exclude evidence of Leonard’s alleged bad
acts toward other employees and the circumstances of Plaintiff’s departure from Defendant and
other issues regarding Plaintiff’s post-employment circumstances, such as his mental health. The
district court denied Defendant’s motion as to Leonard’s prior misconduct but deferred ruling on
the admissibility of evidence regarding Plaintiff’s post-employment circumstances until trial,
instead instructing counsel to inform the court prior to introducing such evidence. A trial was
held from February 4–6, 2014. Plaintiff’s counsel did not inform the district court prior to
introducing evidence of Plaintiff’s post-employment circumstances, including his loss of
insurance. When Defendant objected, the district court typically told Plaintiff’s counsel to
“move on.”
No. 15-5534 Smith v. Rock-Tenn Services, Inc. Page 7

At the close of Plaintiff’s case, Defendant moved for judgment as a matter of law, which
the district court denied. On February 7, 2014, the jury returned a verdict in favor of Plaintiff on
his hostile work environment claim, with compensatory damages of $307,000. The jury
instructions describing the components of a hostile work environment claim are not in the record.
Judgment was entered on February 12, 2014. On March 12, 2014, Defendant renewed its motion
for judgment as matter of law pursuant to Rule 50(b) and moved for a new trial pursuant to Rule
59(a). On April 16, 2015, the district court denied the renewed motion for judgment as a matter
of law and motion for a new trial as to the Title VII claim, but granted judgment as a matter of
law on the Tennessee Human Rights Act claim because the statute of limitations had run. The
district court also reduced the amount of compensatory damages from $307,000 to $300,000 in
order to comply with the Title VII cap on statutory damages. Defendant now appeals.

DISCUSSION

I. Renewed motion for judgment as a matter of law

Standard of Review

We review de novo a district court’s denial of a renewed motion for judgment as a matter
of law made pursuant to Rule 50(b). Rhinehimer v. U.S. Bancorp Investments, Inc., 787 F.3d
797, 804 (6th Cir. 2015) (citing Barnes v. City of Cincinnati, 401 F.3d 729, 736 (6th Cir. 2005)).
In so doing, we may not weigh the evidence, question the credibility of witnesses, or substitute
our own judgment for that of the jury. Rhinehimer, 787 F.3d at 804. Rather, we may grant such
a motion only “when viewing the evidence in a light most favorable to the non-moving party,
giving that party the benefit of all reasonable inferences, there is no genuine issue of material
fact for the jury, and reasonable minds could come to but one conclusion in favor of the moving
party.” Balsley v. LFP, Inc., 691 F.3d 747, 757 (6th Cir. 2012).

Analysis

Title VII of the Civil Rights Act of 1964 prohibits employers from “discriminat[ing]
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.”
No. 15-5534 Smith v. Rock-Tenn Services, Inc. Page 8

42 U.S.C. § 2000e-2(a)(1). Plaintiffs alleging sex discrimination, including for sexual
harassment, may recover on a theory of a hostile work environment. Meritor Sav. Bank, FSB v.
Vinson, 477 U.S. 57, 73 (1986). The Supreme Court has construed Title VII to allow hostile
work environment claims where the harasser and the victim are of the same sex. Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998).

In general, to prevail on a hostile work environment claim, a plaintiff must show that
(1) he or she was a member of a protected class; (2) he or she was subjected to unwelcome
sexual harassment; (3) the harassment complained of was based on sex; (4) the charged sexual
harassment created a hostile work environment; and (5) the employer is liable. Randolph v. Ohio
Dep’t of Youth Servs., 453 F.3d 724, 733 (6th Cir. 2006). To establish employer liability where
the harasser is a co-worker, a plaintiff must show that the employer knew or should have known
of the conduct and failed to take prompt and appropriate corrective action. E.E.O.C. v. Harbert-
Yeargin, Inc., 266 F.3d 498, 518 (6th Cir. 2001).

Defendant does not allege that the district court misstated the law or issued erroneous
jury instructions. Rather, Defendant assails the jury verdict in Plaintiff’s favor, arguing that he
failed to establish practically all of the elements necessary to prevail on a Title VII hostile work
environment claim, particularly where the alleged harasser and victim are of the same sex. It
argues that Plaintiff failed to show that Leonard’s harassment was based on sex, created an
objectively hostile work environment, or that Defendant failed to take immediate and appropriate
corrective action, and that Defendant is therefore entitled to judgment as a matter of law.

A. Harassment Based on Sex

As the Supreme Court has recognized, “[c]ourts and juries have found the inference of
discrimination easy to draw in most male-female sexual harassment situations,” but the inference
of discrimination based on sex may become more complicated when the alleged harasser and
victim are of the same sex. Oncale, 523 U.S. at 80. Cautioning courts and juries not to mistake
“ordinary socializing in the workplace[,] such as male-on-male horseplay” for “discriminatory
conditions of employment,” Oncale held:
No. 15-5534 Smith v. Rock-Tenn Services, Inc. Page 9

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.

Id. at 81–82.

Following Oncale, this Circuit allows a plaintiff alleging same-sex harassment in hostile
work environment cases to establish the inference of discrimination based on sex in three ways:
“(1) where the harasser making sexual advances is acting out of sexual desire; (2) where the
harasser is motivated by general hostility to the presence of men in the workplace; and (3) where
the plaintiff offers ‘direct comparative evidence about how the alleged harasser treated members
of both sexes in a mixed-sex workplace.’” Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 765 (6th
Cir. 2006) (quoting Oncale, 523 U.S. at 80–81).

Plaintiff took the third of these evidentiary routes at trial by attempting to persuade the
jury that Defendant operated a mixed-sex workplace in which Leonard exposed men and only
men to unwelcome touching. On appeal, Defendant argues that no reasonable jury could find
discrimination based on sex because Leonard’s behavior was mere “horseplay” beyond the reach
of Title VII. Viewing the evidence in the light most favorable to Plaintiff and giving him the
benefit of all reasonable inferences, as we must, we cannot accept this self-serving
characterization of Leonard’s behavior. “Horseplay” was much discussed at trial, and the jury
apparently found that pinching and slapping someone on the buttocks or grinding one’s pelvis
into another’s behind goes far beyond horseplay. This conclusion is not so unreasonable as to
entitle Defendant to judgment as a matter of law.

Defendant also argues that Plaintiff and Leonard worked in what could not have been
found to be a mixed-sex workplace. Plaintiff testified that he worked in the Converting
Department, whose workforce consisted of 70% men and 30% women. Plaintiff’s direct
supervisor was female and he also mentioned a “couple” of women “in tow motors” as well as a
woman who “ran the strapper.” (R. 106, Trial Tr. at Page ID 875.) Tow motor drivers would
No. 15-5534 Smith v. Rock-Tenn Services, Inc. Page 10

“com[e] back and forth at times” and the supervisor “mov[ed] around, checking things.” (Id. at
Page ID 874.) He described the strapper as “down here in the corner” in a drawing he made of
the Converting Department, which he showed to the district court and the jury but which is not in
the record; it is unclear on the record to this Court where the strapper was located relative to
Plaintiff’s machine. (Id. at Page ID 873–74.) Plaintiff referred to speaking with his female
supervisor at the daily safety meeting on at least one occasion, and Defendant’s HR manager
confirmed that women worked in the Converting Department.

Defendant did not dispute any of this testimony, but instead relies on EEOC v. Harbert-
Yeargin, Inc., 266 F.3d 498 (6th Cir. 2001), and Johnson v. Hondo, Inc., 125 F.3d 408, 413 n.6
(7th Cir. 1997), to argue that the Converting Department was a gender-segregated workplace,
precluding a jury verdict in Plaintiff’s favor. Harbert-Yeargin is distinguishable: we held in that
case that judgment as a matter of law was warranted when only three of the defendant’s
292 employees at a construction site—some 1% of the defendant corporation’s workforce—were
women and all of them worked in the on-site office, rather than out in the field where the alleged
harassment was taking place. Johnson likewise concerned an area of the defendant’s workplace
in which no women worked and through which women passed only occasionally. See 125 F.3d
at 413 n.6. In light of Plaintiff’s uncontroverted testimony that some 30% of employees in the
Converting Department were women and that men and women encountered one another
regularly—and especially in the absence of Plaintiff’s diagram—we cannot adopt Defendant’s
characterization of its plant as a gender-segregated workplace.

Plaintiff also presented evidence to the jury that the harasser treated men and women
differently: Leonard testified at trial to mooning other men at work, and to having touched at
least seven colleagues, all of them male. Thus, Plaintiff has done exactly what the Supreme
Court asked of him in Oncale: he has “offer[ed] direct comparative evidence about how the
alleged harasser treated members of both sexes in a mixed-sex workplace.” 523 U.S. at 80–81.
By arguing that Plaintiff “must do more than show [Leonard’s] lack of misconduct toward
women,” Defendant essentially asks us to impose additional, unspecified requirements for
making out a case beyond what Oncale and the case law of our Circuit require. (Def.’s Br. at
22.) Not only are we bound by the dictates of the Supreme Court, but presenting evidence of
No. 15-5534 Smith v. Rock-Tenn Services, Inc. Page 11

misconduct against only one sex, and a lack of misconduct against the other, may be a perfectly
acceptable trial strategy in cases such as this one: such evidence may make differential treatment
the obvious inference to draw. We remain mindful that the “critical issue, Title VII’s text
indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of
employment to which members of the other sex are not exposed.” Oncale, 523 U.S. at 80
(citation omitted). Construing the evidence in Plaintiff’s favor, we believe that that was the case
at Defendant’s plant.

B. Whether the Harassment Created a Hostile Work Environment

A plaintiff seeking to proceed on a hostile work environment theory must next prove that
the environment at the workplace was hostile. This is so when “the workplace is permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment.” Harris,
510 U.S. at 21 (internal citations omitted). To succeed, a plaintiff must show that the work
environment was both subjectively and objectively hostile; in other words, that the plaintiff not
only perceived the work environment as hostile, but that a reasonable person would have found it
hostile or abusive as well. Id. at 21–22. When assessing the hostility of a work environment,
courts and juries consider the totality of the circumstances, including “the frequency of the
discriminatory conduct; its severity; whether it [was] physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably interfere[d] with an employee’s
performance.” Randolph, 453 F.3d at 733 (quoting Harris, 510 U.S. at 23). It is undisputed that
Plaintiff subjectively found the work environment severely hostile, and that it interfered with his
performance.

Consistent with Harris’ conceptual distinction between physically threatening or
humiliating behavior and “mere offensive utterance[s],” 510 U.S. at 23, we have long held that
“harassment involving an element of physical invasion is more severe than harassing comments
alone.” Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 334 (6th Cir. 2008) (citation omitted)
(reversing summary judgment to defendant in a hostile work environment claim brought under
Ohio law where a harasser made frequent lewd comments and “on one occasion” rubbed against
one of the plaintiffs “with ‘his private area’”). See also Williams v. Gen. Motors Corp., 187 F.3d
No. 15-5534 Smith v. Rock-Tenn Services, Inc. Page 12

553, 559 (6th Cir. 1999) (reversing a grant of summary judgment to the defendant where
harassers had made repeated sexual comments, asked the plaintiff to walk backwards into him,
and once touched her neck).

In conducting our inquiry, we may also “consider evidence of other acts of harassment of
which a plaintiff becomes aware during the period [of] his or her employment, even if the other
acts were directed at others and occurred outside of the plaintiff's presence.” Hawkins, 517 F.3d
at 335 (summarizing this Court’s Title VII jurisprudence in a hostile work environment sexual
harassment case brought under Ohio anti-discrimination statute). See also Jackson v. Quanex
Corp., 191 F.3d 647, 660–62 (6th Cir. 1999); Moore v. KUKA Welding Sys. & Robot Corp.,
171 F.3d 1073, 1077 (6th Cir. 1999); Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 249
n.4 (6th Cir. 1998). In hostile work environment cases, we consider the “work environment as a
whole” rather than individual instances of harassment. Bowman v. Shawnee State Univ.,
220 F.3d 456, 463 (6th Cir. 2000) (citing Williams, 187 F.3d at 562–63). Thus, we may consider
both the incidents in which Leonard touched Plaintiff and the incident Plaintiff observed in
which Leonard pinched Gill’s rear. Defendant focuses only on the incidents directly involving
Plaintiff, which it describes as “sporadic, isolated male-on-male horseplay” that cannot constitute
an objectively hostile work environment. (Def.’s Br. at 26.) Plaintiff stresses that the jury heard
evidence from which it could conclude the work environment was objectively hostile or abusive.

Like several of our fellow circuits, we consider whether harassment was so severe and
pervasive as to constitute a hostile work environment to be “quintessentially a question of fact.”
Jordan v. City of Cleveland, 464 F.3d 584, 597 (6th Cir. 2006); see also Mosby-Grant v. City of
Hagerstown, 630 F.3d 326, 335 (4th Cir. 2010); E.E.O.C. v. PVNF, L.L.C., 487 F.3d 790, 798
(10th Cir. 2007). Defendant appears to be dissatisfied with the jury’s resolution of that question,
and asks us to reverse it as unreasonable. Yet none of the many cases on which Defendant relies
involved the same severity of physical contact as occurred here, and many involved incidents
spread out over a much longer period of time; moreover, Defendant identifies no case law in
which we overturned a jury verdict on comparable facts. See, e.g., Wade v. Automation Pers.
Servs., Inc., 612 F. App’x 291, 298 (6th Cir. 2015) (affirming summary judgment for
inappropriate comments, one gesture, and one incident of harasser exposing her breasts); Clark v.
No. 15-5534 Smith v. Rock-Tenn Services, Inc. Page 13

United Parcel Serv., Inc., 400 F.3d 341, 344 (6th Cir. 2005) (affirming summary judgment
where harassment consisted of sexual jokes, two instances of placing a vibrating pager on the
plaintiff’s thigh, and one incident in which harasser tried to look down the plaintiff’s overalls
occurring over two and half years); Morris v. Oldham Cty. Fiscal Court, 201 F.3d 784, 790 (6th
Cir. 2000) (affirming summary judgment where harassment consisted of several dirty jokes in
the plaintiff’s presence; one verbal sexual advance related to the plaintiff’s evaluation; a single
reference to the plaintiff as “Hot Lips” and isolated comments about the plaintiff’s clothing took
place over approximately sixteen months).

By contrast, all of the incidents Plaintiff experienced or of which he was aware that took
place over the roughly six months that he and Leonard both worked in the plant involved the
element of physical invasion we have found so crucial in cases like Williams. According to
Plaintiff, the three incidents between him and Leonard took place over the course of a few
months: about a week separated the first and second incidents, and the third incident occurred a
month or more after that. Plaintiff described these incidents as escalating from a slap on the rear,
to a painful grab on the rear, to grab by the hips and “hunching,” i.e., briefly simulating sex. A
threatening gesture after the first incident and a verbal threat after the second apparently did
nothing to prevent subsequent incidents. The incident Plaintiff observed with Gill similarly
involved inappropriate touching. Taking into account all the circumstances and viewing the facts
in the light most favorable to the Plaintiff, we cannot say that the jury’s determination that a
hostile or abusive work environment existed was unreasonable.

C. Defendant’s Response

The last requirement for a Title VII hostile work environment claim is employer liability.
To impose liability on an employer for the harassing conduct of a plaintiff’s co-worker, a
“plaintiff must show that the employer’s response to the plaintiff’s complaints ‘manifest[ed]
indifference or unreasonableness in light of the facts the employer knew or should have
known.’” Waldo v. Consumers Energy Co., 726 F.3d 802, 814 (6th Cir. 2013) (quoting
Hawkins, 517 F.3d at 338). A plaintiff must therefore show that the employer “knew or should
have known of the harassment” and “failed to take prompt and appropriate corrective action.”
McCombs v. Meijer, Inc., 395 F.3d 346, 353 (6th Cir. 2005) (quoting Harbert-Yeargin, 266 F.3d
No. 15-5534 Smith v. Rock-Tenn Services, Inc. Page 14

at 518). “Generally, a response is adequate if it is reasonably calculated to end the harassment.”
Waldo, 726 F.3d at 814. Appropriate steps “may include promptly initiating an investigation.”
Id. Even separating the harasser and victim immediately may not be enough without further
action on the employer’s part. West v. Tyson Foods, Inc., 374 F. App’x 624, 633 (6th Cir. 2010).

Following company policy, Plaintiff initially tried to address the incidents with Leonard
directly, and brought the unwanted touching to Defendant’s attention only after the June 4, 2011
“hunching” incident, whereupon Plaintiff’s operator, Clinton Gill, sent him home for the day.
Plaintiff brought the incident to the attention of his supervisor and to plant superintendent Scott
Keck on June 6, 2011 but Keck, who had given Leonard the disciplinary warning some two and
a half months prior, informed him that nothing could be done until operations manager Bobby
Hunter returned from vacation at the end of the following week. After that meeting, Plaintiff
returned to work in the Converting Department and worked for a week and a half some 10–15
yards from Leonard; at some point during that time, Plaintiff and Leonard were sent out for a
hearing test together. Only after Plaintiff wrote to management to document the incidents and
request leave on June 16, 2011 did Defendant initiate an investigation.

When the investigation was finally initiated, management called Leonard in to speak with
them, and apparently took him at his word that he had put his arm around Plaintiff and that
Plaintiff backed into him. HR manager Wade Phillips testified that Defendant did not follow its
own policies; the outcome of the investigation was not the required written report but a page of
barely legible notes. That write-up, such as it was, contained red flags on which Defendant
appears to have followed up only minimally, as indicated by a note regarding Nick Clark’s
complaint about Leonard to Phillips, which Clark later said had been handled, and Devonna
Odum’s mention of rumors about Jim touching an employee named Stephen Hackney. Although
Hunter claimed to have spoken to Hackney, no notes appear under his name. At the conclusion
of the investigation, Keck and Hunter never communicated to David McIntosh, who was in
charge of discipline, that the bathroom incident between Leonard and Roper had occurred and
that Leonard had been told that future complaints of sexual harassment would result in discharge.
Thus, despite the prior warning, Defendant only suspended Leonard for a day and a half to two
days. According to Leonard, he was never even deprived of pay.
No. 15-5534 Smith v. Rock-Tenn Services, Inc. Page 15

Defendant argues that the steps it took were so clearly prompt and appropriate as to
entitle it to judgment as a matter of law. Yet Defendant fails to grasp that what it failed to do is
just as important. In West, 374 F. App’x 624, in which we affirmed the denial of a defendant’s
renewed motion for judgment as a matter of law, we identified a number of steps that a
reasonable jury might have thought the defendant should have taken, but did not. In this case, a
reasonable jury could have concluded that Defendant’s total inaction for ten days, where
Defendant knew that Leonard had touched Plaintiff, and had told Leonard that further complaints
would result in termination, was unreasonable. Defendant did not separate the two men, suspend
Leonard pending an investigation, or initiate its investigation in a timely manner; a reasonable
jury could find that the failure to take any of these steps or others rendered its response neither
prompt nor appropriate in light of what it knew or should have known regarding Leonard’s prior
misconduct.

II. Motion for a new trial

Standard of review

We review the denial of a motion for a new trial for abuse of discretion. Tompkins v.
Crown Corr, Inc., 726 F.3d 830, 835 (6th Cir. 2013). We consider a district court to have abused
its discretion when we have “‘a definite and firm conviction that the trial court committed a clear
error of judgment.’” Id. (quoting Mike’s Train House, Inc. v. Lionel, LLC, 472 F.3d 398, 405
(6th Cir. 2006)). “[A] new trial is warranted when a jury has reached a seriously erroneous result
as evidenced by: (1) the verdict being against the weight of the evidence; (2) the damages being
excessive; or (3) the trial being unfair to the moving party in some fashion, i.e., the proceedings
being influenced by prejudice or bias.” Balsley v. LFP, Inc., 691 F.3d 747, 761 (6th Cir. 2012)
(citation omitted). This Court allows district courts “‘[b]road discretion . . . in determinations of
admissibility based on considerations of relevance and prejudice,’ and we do not ‘lightly
overrule’ those decisions.” West v. Tyson Foods, Inc., 374 F. App’x 624, 636 (6th Cir. 2010)
(quoting United States v. Penney, 576 F.3d 297, 315 (6th Cir.2009)).

Where the motion is based on alleged attorney misconduct, as here, the movant must
make a “concrete showing” that the conduct “consistently permeated” the trial such that the
No. 15-5534 Smith v. Rock-Tenn Services, Inc. Page 16

moving party was unfairly prejudiced by the misconduct. Tompkins, 726 F.3d at 835 (6th Cir.
2013). This Court then considers “the totality of the circumstances, including the nature of the
comments, their frequency, their possible relevancy to the real issues before the jury, the manner
in which the parties and the court treated the comments, the strength of the case . . . and the
verdict itself.” Balsley, 691 F.3d at 761.

Analysis

As a threshold matter, we must determine whether Defendant has preserved its
evidentiary challenges for appeal. Prior to trial, Defendant moved in limine to exclude evidence
of Leonard’s harassment of other men of which Defendant was unaware and Plaintiff did not
witness, and Plaintiff’s post-employment circumstances, such as his medical bills and
unemployment. The district court denied Defendant’s request to exclude evidence of Leonard’s
inappropriate behavior toward other employees, but deferred ruling on the admissibility of
evidence of Plaintiff’s post-employment circumstances, and requested that Plaintiff’s counsel
inform the court before introducing such evidence. “If the trial court has made an explicit and
definitive ruling on the record of the evidentiary issues to be decided, and has not indicated that
the ruling is conditioned upon any other circumstances or evidence, then counsel need not renew
the objection at the time the evidence is offered.” United States v. Brawner, 173 F.3d 966, 970
(6th Cir. 1999). Thus, Defendant has properly preserved its challenge to the admissibility of
Leonard’s prior harassment. However, when a motion in limine is not ruled upon, counsel must
object at trial to preserve error. United States v. Finnell, 276 F. App’x 450, 453 (6th Cir. 2008)
(citing United States v. Kelly, 204 F.3d 652, 654 (6th Cir. 2000)). With respect to post-
employment circumstances, the record shows that Defendant objected to all but one of the
comments made by Plaintiff that it considered inadmissible, objected to Wade Phillips’
testimony regarding Plaintiff’s departure, but appears not to have timely objected to the
testimony of Gene Doyle Kermicle, Plaintiff’s therapist. Defendant has therefore preserved its
objections only to the first two witnesses. Finally, failure to object to an opening or closing
argument, as was the case here, “raise[s] the degree of prejudice which must be demonstrated in
order to get a new trial on appeal.” Strickland v. Owens Corning, 142 F.3d 353, 358 (6th Cir.
1998).
No. 15-5534 Smith v. Rock-Tenn Services, Inc. Page 17

A. Leonard’s prior acts

In its ruling on the motion in limine, the district court cited Hawkins for the proposition
that “the factfinder may consider similar acts of harassment of which a plaintiff becomes aware
during the course of his or her employment, even if the harassing acts were directed at others or
occurred outside of the plaintiff’s presence.” 517 F.3d at 336. Defendant takes this statement
out of context to mean that acts of harassment that Plaintiff did not witness and of which
Defendant was unaware are inadmissible for any purpose. In Hawkins, two of the plaintiffs
knew of instances of harassment directed against a co-worker who had not joined the lawsuit; the
court simply held that a factfinder could consider those acts of harassment when deciding
whether the work environment was objectively hostile, and was subjectively perceived by the
plaintiffs to be so. Hawkins in no way limited any other purpose for which the evidence might
be offered, including for the purpose of establishing whether harassment is based on sex. By
introducing this evidence, Plaintiff merely followed the directive of Oncale that a plaintiff may
offer “direct comparative evidence about how the alleged harasser treated members of both sexes
in a mixed-sex workplace.” 523 U.S. 75, 80–81. Because this evidence was admissible, its
introduction does not entitle Defendant to a new trial.

B. Plaintiff’s post-employment circumstances

Federal law allows prevailing plaintiffs in Title VII actions to recover compensatory
damages for “emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of
life, and other nonpecuniary losses.” 42 U.S.C. § 1981a(b)(3). This Circuit allows plaintiffs to
recover for ongoing mental distress where that distress stems from the alleged discriminatory
conduct. See, e.g., West, 374 F. App’x at 642; Turic v. Holland Hosp., Inc., 85 F.3d 1211, 1215
(6th Cir. 1996). Steadfast in its theory that all of Plaintiff’s post-employment woes were due to
his voluntary separation from employment, Defendant argues that this evidence was irrelevant
and inadmissible. Defendant relies heavily on Betts v. Costco Wholesale Corp., 558 F.3d 461,
472 (6th Cir. 2009), in which this Court, construing a Michigan anti-discrimination statute,
reversed an award of emotional distress damages where there was “no material evidence in the
record regarding any emotional distress that [a particular plaintiff] suffered as a result of
Costco’s hostile work environment” and her “distress flowed instead from the financial
No. 15-5534 Smith v. Rock-Tenn Services, Inc. Page 18

difficulties she faced after her nondiscriminatory discharge.” However, the record is not so
devoid of evidence as in Betts that Plaintiff’s prolonged psychological difficulties, including
depression, stemmed directly from the harassment he faced. For example, Plaintiff experienced
a panic attack when someone came up close behind him in a supermarket aisle after he had left
his job. Where Plaintiff’s testimony regarding his post-employment mental state concerned the
lasting effects of the harassment, the evidence was admissible, and Plaintiff’s counsel did not act
improperly in questioning him about it.

1. Questioning of Wade Phillips

Defendant misconstrues the questioning of Phillips by Plaintiff’s counsel to suggest that
counsel was out of line in eliciting testimony about Plaintiff “quitting his job”—a term used by
Phillips, not by counsel. Plaintiff’s counsel was attempting unsuccessfully to lay a foundation
for Defendant’s letter to the EEOC by asking, among other things, about Defendant’s failure to
mention the first two incidents between Leonard and Plaintiff in the letter and Defendant’s claim
to the EEOC that Plaintiff had not submitted anything regarding fear of future incidents. The
district court then declined to admit the EEOC letter into evidence. Plaintiff’s counsel asked
when Defendant was “made aware of any sort of change in [Plaintiff]’s employment status,” a
question that Plaintiff’s counsel argued went to the statute of limitations, an issue Defendant had
raised at the summary judgment stage. (R. 107, Trial Tr. at Page ID 1004.) Soon thereafter, the
parties stipulated that Plaintiff had left employment in September 2011. This questioning was
not improper, and does not entitle Defendant to a new trial.

2. Questioning of Plaintiff

The direct examination of Plaintiff by Plaintiff’s counsel was hardly as outrageous as
Defendant suggests. In its brief, Defendant objects to five instances of Plaintiff’s testimony that
it claims were improperly elicited. One of these was not objected to, and the district court
intervened before Plaintiff answered counsel’s question in another instance. The remaining three
instances of testimony about the allegedly inadmissible issues, including the fact that Plaintiff’s
short-term disability insurance ran out, were part of Plaintiff’s roundabout narrative answers to
questions that concerned the ongoing psychological effects of the incidents with Leonard. After
No. 15-5534 Smith v. Rock-Tenn Services, Inc. Page 19

each instance, Defendant objected to the substance of the testimony but not to the lengthy
narrative answers given by Plaintiff. When ruling on the objection, the district court would
simply say, “Let’s move on.” The conduct of Plaintiff’s counsel was not improper, especially in
light of the ambiguous signals sent by the district court.

3. Questioning of Doyle Gene Kermicle

Even if Plaintiff had properly objected to the testimony of Doyle Gene Kermicle,
Plaintiff’s therapist, the admission of his testimony would not necessitate a new trial. Kermicle’s
questioning proceeded much as Plaintiff’s had: Plaintiff’s counsel would ask an open-ended
question, typically about how Plaintiff was doing when Kermicle saw him at a particular
appointment, and Kermicle would provide a lengthy narrative answer. In response to questions
about Plaintiff’s condition on particular dates, Kermicle testified that Smith had claimed he was
unable to return to work, and “had apparently decided at that point to quit work, just give up and
not go back,” and that “he couldn’t afford to continue the therapy because he was going to be
losing his insurance.” (R.107, Trial Tr. at PageID 1138.) While the jury should not have heard
these comments, it does not appear that they prejudiced or biased its decision. Furthermore, the
district court clarified in a jury instruction that Plaintiff did not have a claim related to his
separation from employment. Generally, a motion for a new trial should be denied when any
prejudice that might have resulted from the error was cured by instructions from the court.
Holmes v. City of Massillon, Ohio, 78 F.3d 1041, 1047 (6th Cir. 1996). A few improper stray
comments are not sufficient to warrant a new trial, especially when the district court issued a
curative instruction.

4. Opening and closing statement

Finally, in Plaintiff’s opening and closing statement, counsel stated that Plaintiff was
unable to come back to work, lost his short-term disability insurance, “lost his job,” and
“ultimately had to leave work” due to the harassment. (R. 108, Trial Tr. at Page ID 1191–92.)
To merit a new trial, Defendant must show “a reasonable probability that the verdict of the jury
has been influenced” by the improper conduct of Plaintiff’s counsel. Innovation Ventures, LLC
v. N2G Distrib., Inc., 763 F.3d 524, 542 (6th Cir. 2014). We require a heightened showing of
No. 15-5534 Smith v. Rock-Tenn Services, Inc. Page 20

prejudice when, as here, a party fails to object. Balsley, 691 F.3d at 761. With only the hostile
work environment claim proceeding to trial, counsel should not have made these comments.
However, the district court cured this error by instructing the jury prior to opening and closing
statements that the arguments of counsel are not evidence. See id. at 765 (heightened showing of
prejudice unmet where improper comments were short relative to lengthy closing statement and
district court issued an instruction that counsel’s arguments were not evidence). Viewing the
totality of the circumstances, we believe that the district court did not abuse its discretion in
denying Defendant’s motion for a new trial.

CONCLUSION

For the reasons stated above, we AFFIRM the judgment of the district court.