1 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

_________________

J EFFRY L. S MITH , Plaintiff-Appellee ,

v

.

R OCK -T ENN S ERVICES , I NC ., Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ No. 15-5534

Appeal from the United St ates 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 BLAC KWELL LLP, St. Louis, Missouri, for Appellant. Heather Moore Co llins, COLLINS & HUNTER, PLLC, Brentwood, Tennessee, for Appellee. ON BRIEF: Randall S. Thompson, HUSCH BLACKWELL LLP, St. Louis, Missouri, Hillary L. Klein, HUSCH BL ACKWELL LLP, Chattanooga, Tennessee, for Appellant. Heather Moore Co llins, 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. 

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

_________________ OPINION

_________________ CLAY, Circuit Judge. Defendant Rock-Tenn Services, In c., Plaintiff Jeffry L. Smith’s former employer, appeals the judgm ent entered by the district court on the jury verdict in favor of Plaintiff on his sexual harassment claim a lleging a hostile work envi ronment brought pursuant to Title VII of the Civil Right s 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 plan t in Murfreesboro, Tennessee, Plaintiff underwent orientation at which he learned about comp any 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. Plainti ff’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 be gan with a safety meeting, at which the team discussed safety and any injuries that had occurred. Plainti ff testified that the Converting Department was approximately 70% men an d 30% women. The company’s HR manager confirmed that women worked in the Converting Department.
In December 2010, Defendant’s employee Jim Leona rd returned from medical leave. On the first evening that Leonard was in the plan t, Plaintiff observed Le onard “come up behind” 450 operator Clinton Gill, “grab[] him in the butt,” a nd 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.) Pl aintiff responded by pointing at Leona rd, as a warning to “keep [his]No. 15-5534 Smith v. Rock-Tenn Services, Inc. Page 3

hands off.” ( Id. ) Although Plaintiff thought that “ever ything would be okay after that,” approximately a week later, Leonard came up behi nd Plaintiff again while Plaintiff was working at the computer, and “grabbed [him] so hard on [t he] butt that [his] tail was actually sore.” ( Id. ) In response, Plaintiff grabbe d 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 sexu al harassment policy, subjects of harassment are supposed to speak directly to th eir harassers to ask that the conduct be stopped before bringing their concerns to management. Pl aintiff did not report e ither of these incidents both because of the policy and because he thought Leonard would stop after the warnings.
About a month later, on Saturday, J une 4, 2011, Plaintiff was working at the 303 machine. While he was bent over to lo ad 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.) Plai ntiff turned around, grabbed Leonard by the throat fo r about thirty seconds, lifted him off the ground, and “was just blessing him out.” ( Id. at Page ID 879.) Plaintiff reported the in cident 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.) Plainti ff 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 frie nd and colleague, James Sims, who told plant superintendent Scott Keck about the incident be fore Plaintiff arrived on the morning of Monday, June 6, 2011. At the daily safety meeting, Plaintiff brought the in cident 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 ther eafter, plant s uperintendent Keck called Plaintiff into his office, whereu pon Plaintiff reported th e 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 ar ea as Leonard, Plainti ff 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 ya rds of Leonard the following week. On Wednesday, June 15, 2011, Plaintiff suffered an a nxiety 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 ha d “done this to others after my 2nd Occurrence” and that Leonard “carries a Knife in his pocket [a nd] was said to have pulled it on one of the guys he’s done this to.” (Pl.’s A pp’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 returni ng 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 superinte ndent Scott Keck and op erations 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 empl oyees in the Converting Department, none of whom had witnessed the “hunching ” incident. According to H unter, Devonna Odum, Plaintiff’s direct supervisor, had heard rumors about Le onard’s behavior regarding another employee, Stephen Hackney. Hunter did not testify to th e content of his conversation with Hackney. According to Hunter, Clinton Gill reported a pinc h in the side. When Hunter spoke to Nick Clark, Hunter testified that Cl ark 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 fo rth policies for inves tigating complaints,No. 15-5534 Smith v. Rock-Tenn Services, Inc. Page 5

including for sexual harassment, was “a guideline th at could be followed” but was not always; in Plaintiff’s case, Defendant did not procure wr itten 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 ha ndwritten notes. Although Hunter, Keck, and HR manager Wade Phillips recommended that Leonard be terminate d, 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] decisi on on the investigation of the Saturday night occurrence” and “didn’t go back and investigate in stances that had happened in the past.” ( Id. at Page ID 1058.) Although Phillips testified that Leonard’s pay wa s 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 fo r 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 incident s 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 fr om him. Keck wrote up the incident on a form and brought it to Leonard on the factory floor fo r his signature. The write-up was placed in Leonard’s personnel file, which de scribed the issue as “Horsepl ay – sexual harassment,” and stated that Keck and Hunter had “met with J im to address a complaint from a coworker about unwanted contact which Jim deemed . . . horseplay. We review ed 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 di scipline, that the incide nt 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, ha d difficulty sleeping, and experienced an anxiety attack when someone came up behind him in the ch eckout aisle of the supermarket. Eventually,No. 15-5534 Smith v. Rock-Tenn Services, Inc. Page 6

his short-term disability insurance ran out. Plai ntiff’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, uncontro llable thoughts about his attacker, irritability and rage , panic attacks when . . . the obtrusive thoughts occur . . . hypervigilance, loss of ability to concentrate, feelings of hopelessnes s and guilt and feeling humiliated before his peers at work.” (R. 107, Trial Tr., at Page ID 114 2.) 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 Distri ct Court for the Middle District of Tennessee on June 15, 2012, alleging sexual harassment, wr ongful termination, a nd retaliation under the Tennessee Human Rights Ac t, 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 Ja nuary 17, 2014, the district court granted partial summary judgment to Defendant on the retali ation 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 depart ure from Defendant and other issues regarding Plaintiff’ s post-employment circumstances, su ch 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 Plainti ff’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 counse l did not inform the district court prior to introducing evidence of Plain tiff’s post-employment circumst ances, 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 m oved for judgment as a matter of law, which the district court denied. On Fe bruary 7, 2014, the jury re turned a verdict in fa vor of Plaintiff on his hostile work environment claim, with compensatory damages of $307,000. The jury instructions describing the compone nts 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 st atutory damages. Defendant now appeals.

DISCUSSION
I. Renewed motion for judg ment as a matter of law

Standard of Review

We review de novo a district court’s deni al of a renewed motion fo r judgment as a matter of law made pursuant to Rule 50(b). Rhinehimer v. U.S. Banc orp 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, questi on the credibility of witn esses, 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 bene fit of all reasonable inferences, ther e 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 Right s Act of 1964 prohibits employers from “discriminat[ing] against any individual with respect to his comp ensation, 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 allegi ng 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 V II 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 e nvironment claim, a plaintiff must show that (1) he or she was a member of a protected cla ss; (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 pl aintiff must show that the empl oyer knew or should have known of the conduct and failed to take prom pt and appropriate corrective action. E.E.O.C. v. HarbertYeargin, 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, Defenda nt 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 allege d 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 Defenda nt is therefore entitled to j udgment as a matter of law.

A. Harassment Based on Sex
As the Supreme Court has rec ognized, “[c]ourts and juries ha ve found the inference of discrimination easy to draw in most male-female sexual harassment situati ons,” 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 cour ts 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 beha vior 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 appropria te sensitivity to social context, will enable courts and juries to distinguish between si mple 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 inferenc e 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 eviden ce 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 ro utes at trial by attempting to persuade the jury that Defendant operated a mixed-sex wo rkplace 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 be havior 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 accep t this self-serving characterization of Leonard’s beha vior. “Horseplay” was much disc ussed at trial, and the jury apparently found that pinching and slapping someone on the butto cks or grinding one’s pelvis into another’s behind goes far beyond horseplay. This conclusion is not so unreasonable as to entitle Defendant to judgme nt as a matter of law.
Defendant also argues that Pl aintiff 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 wouldNo. 15-5534 Smith v. Rock-Tenn Services, Inc. Page 10

“com[e] back and forth at times” and the s upervisor “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 ju ry 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 refe rred to speaking with his female supervisor at the daily safety meeting on at least one occasion, and De fendant’s HR manager confirmed that women worked in the Converting Department.
Defendant did not dispute any of th is testimony, but instead relies on EEOC v. HarbertYeargin, 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 thatthe 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 wa rranted when only three of the defendant’s 292 employees at a construction s ite—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 tes timony 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 Pl aintiff’s diagram—we ca nnot adopt Defendant’s characterization of its plant as a gender-segre gated workplace.
Plaintiff also presented evidence to the ju ry that the harasser treated men and women differently: Leonard testified at trial to mooni ng other men at work, and to having touched at least seven colleagues, all of them male. Thus, Plaintiff ha s 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 ina 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 im pose 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 th e Supreme Court, but pr esenting evidence ofNo. 15-5534 Smith v. Rock-Tenn Services, Inc. Page 11

misconduct against only one sex, and a lack of mi sconduct 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 i ssue, Title VII’s text indicates, is whether members of one sex are e xposed 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). Cons truing 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 wor kplace is permeated with discriminatory intimidation, ridicule , and insult that is sufficiently se vere 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, bu t that a reasonable pers on would have found it hostile or abusive as well. Id. at 21–22. When assessing the hos tility of a work environment, courts and juries consider the totality of th e 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 un reasonably 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 se verely hostile, and that it interfered with his performance.

Consistent with Harris ’ conceptual distin ction between physica lly 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 inva sion 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 lewdcomments and “on one occasion” rubbed against one of the plaintiffs “with ‘his private area’”). See also Williams v. Gen. Motors Corp. , 187 F.3dNo. 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, as ked the plaintiff to walk backwards into him, and once touched her neck).
In conducting our inquiry, we may also “consider evidence of other ac ts of harassment of which a plaintiff becomes aware during the period [o f] 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 (6 th 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 wo rk environment cases, we consid er 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 Leona rd touched Plaintiff and the in cident Plaintiff observed in which Leonard pinched Gill’s rear. Defendant focuses only on the incidents directly involving Plaintiff, which it describes as “sporadic, isolat ed 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 ci rcuits, we consider whether harassment was so severe and pervasive as to constitute a hostile work environmen t 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 appear s to be dissatisfied w ith the jury’s resolu tion of that question, and asks us to reverse it as unr easonable. 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 se xual jokes, two inst ances of placing a vi brating pager on the plaintiff’s thigh, and one incident in which ha rasser 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 hara ssment consisted of several dirty jokes in the plaintiff’s presence; one verb al sexual advance related to the plaintiff’s evaluation; a single reference to the plaintiff as “H ot Lips” and isolated comments about the plainti ff’s clothing took place over approximately sixteen months).
By contrast, all of the incidents Plaintiff e xperienced or of which he was aware that took place over the roughly six months that he and Le onard 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 an d Leonard took place over the course of a few months: about a week separated the first and seco nd incidents, and the third incident occurred a month or more after that. Plaint iff 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 firs t incident and a verbal threat after the second apparently did nothing to prevent subsequent in cidents. The incident Plaint iff observed with Gill similarly involved inappropriate touching. Taking into account all the circumstances and viewing the facts in the light most favorable to th e 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 wo rk environment claim is employer liability. To impose liability on an employer for the hara ssing conduct of a plai ntiff’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 theref ore show that the employer “knew or should have known of the harassment” and “failed to ta ke prompt and appropria te corrective action.” McCombs v. Meijer, Inc. , 395 F.3d 346, 353 (6th Cir. 2005) (quoting Harbert-Yeargin , 266 F.3dNo. 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 incl ude promptly initiating an investigation.” Id. Even separating the harass er and victim immediately ma y 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, Plainti ff initially tried to address the incidents with Leonard directly, and brought the unwanted touching to De fendant’s attention only after the June 4, 2011 “hunching” incident, whereupon Plai ntiff’s operator, Clinton Gill, sent him home for the day. Plaintiff brought the incident to th e attention of his supe rvisor 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 th e 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 ti me, Plaintiff and Leonard were sent out for a hearing test together. Only after Plaintiff wr ote to management to document the incidents and request leave on June 16, 2011 did Defe ndant 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 Ph illips testified that Defe ndant did not follow its own policies; the outcome of the investigation wa s 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 re garding Nick Clark’s complaint about Leonard to Phillips, which Cl ark 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 not es appear under his name. At the conclusion of the investigation, Keck a nd Hunter never communicated to David McIntosh, who was in charge of discipline, that th e bathroom incident between Le onard 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 suspende d 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 la w, we identified a number of steps that a reasonable jury might have thought the defendant s hould have taken, but did not. In this case, a reasonable jury could have concluded that De fendant’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. De fendant did not separate the two men, suspend Leonard pending an investig ation, or initiate its investigati on in a timely manner; a reasonable jury could find that the failure to take any of th ese steps or others rende red its response neither prompt nor appropriate in light of what it kne w or should have known re garding Leonard’s prior misconduct.

II. Motion for a new trial

Standard of review

We review the denial of a motion fo r 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 th e 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 pr ejudice or bias.” Balsley v. LFP, Inc. , 691 F.3d 747, 761 (6th Cir. 2012) (citation omitted). This Court allows district cour ts “‘[b]road discretion . . . in determinations of admissibility based on considerations of rele vance and prejudice,’ a nd 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 attorn ey misconduct, as here, the movant must make a “concrete showing” that the conduct “consistently permea ted” the trial such that theNo. 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 c onsiders “the totality of the circumstances, incl uding the nature of the comments, their frequency, their pos sible relevancy to the real issu es before the jury, the manner in which the parties and the court treated the co mments, the strength of the case . . . and the verdict itself.” Balsley , 691 F.3d at 761.
Analysis
As a threshold matter, we must determ ine 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 whic h 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 circumst ances, 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 i ssues to be decided, and has not indicated that the ruling is conditioned upon any ot her 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 pr eserved 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 postemployment circumstances, the record shows th at 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 ther apist. Defendant has therefore preserved its objections only to the first two witnesses. Fi nally, failure to object to an opening or closing argument, as was the case here, “raise[s] the de gree 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 em ployment, 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 ac ts 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 cons ider those acts of harassment when deciding whether the work environment was objectively hos tile, and was subjectiv ely perceived by the plaintiffs to be so. Hawkins in no way limited any other purpos e for which the evidence might be offered, including for the purpose of establis hing whether harassment is based on sex. By introducing this evidence, Plaintiff merely followed the directive of Oncale that a plaintiff may offer “direct comparative eviden ce about how the alleged harasse r 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-e mployment circumstances
Federal law allows prevailing plaintiffs in Title VII actions to recover compensatory damages for “emotional pain, suffering, inconvenie nce, 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 di stress 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 a ll of Plaintiff’s post-employ ment woes were due to his voluntary separation from em ployment, Defendant argues that this evidence was irrelevant and inadmissible. Defe ndant 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 [aparticular plaintiff] suffered as a result of Costco’s hostile work environment” and her “distress flowed instead from the financialNo. 15-5534 Smith v. Rock-Tenn Services, Inc. Page 18

difficulties she faced after her nondiscriminatory di scharge.” However, the record is not so devoid of evidence as in Betts that Plaintiff’s prol onged 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 test imony regarding his post-employme nt mental state concerned the lasting effects of the harassment, the evidence wa s admissible, and Plaintiff’s counsel did not act improperly in questioning him about it.
1. Questioning of Wade Phillips
Defendant misconstrues the questioning of Phi llips 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 a nd Plaintiff in the letter and Defendant’s claim to the EEOC that Plaintiff had not submitted anythi ng regarding fear of future incidents. The district court then declined to admit the EEOC letter into evidence. Plai ntiff’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 em ployment in September 2011. This questioning was not improper, and does not entitl e Defendant to a new trial.
2. Questioning of Plaintiff

The direct examination of Pl aintiff by Plaintiff’s counsel was hardly as outrageous as Defendant suggests. In its brief, Defendant objects to five instan ces of Plaintiff’s testimony that it claims were improperly elicited. One of th ese was not objected to, and the district court intervened before Plaintiff answered counsel’s qu estion in another instance. The remaining three instances of testimony about the a llegedly inadmissible issues, incl uding the fact that Plaintiff’s short-term disability insurance ran out, were part of Plaintiff’s roundabo ut narrative answers to questions that concerned the ongoing psychological effects of the incidents with Leonard. AfterNo. 15-5534 Smith v. Rock-Tenn Services, Inc. Page 19

each instance, Defendant objected to the substa nce of the testimony but not to the lengthy narrative answers given by Plaintiff. When ru ling on the objection, the district court would simply say, “Let’s move on.” The conduct of Plai ntiff’s counsel was not improper, especially in light of the ambiguous signals se nt 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 ne w trial. Kermicle’s questioning proceeded much as Plaintiff’s had: Plaintiff’s counsel would ask an open-ended question, typically about how Plaintiff was doi ng when Kermicle saw him at a particular appointment, and Kermicle would provide a lengthy narrative answ er. In response to questions about Plaintiff’s condition on partic ular dates, Kermicle testified that Smith had claimed he was unable to return to work, and “had apparently deci ded at that point to quit work, just give up and not go back,” and that “he couldn ’t afford to continue the ther apy 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 prej udiced or biased its decision. Furthermore, the district court clarified in a jury instruction th at 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 e rror 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-te rm disability insurance, “lost his job,” and “ultimately had to leave work” due to the hara ssment. (R. 108, Trial Tr. at Page ID 1191–92.) To merit a new trial, Defendant must show “a reas onable probability that the verdict of the jury has been influenced” by the imprope r 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 ofNo. 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 prio r 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 s hort relative to lengthy closing statement and district court issued an instru ction that counsel’s arguments we re not evidence). Viewing the totality of the circumstances, we believe that th e 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.