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 

_________________ 

JEFFRY L. SMITH, 

Plaintiff-Appellee, 

v. 

ROCK-TENN SERVICES, INC., 

Defendant-Appellant. 

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No. 15-5534 

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. 

>
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. 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, 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. 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 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 postemployment 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.