813 F.3d 298 (6th Cir. 2016), 15-5534, Smith v. Rock-Tenn Services, Inc.

Docket Nº:15-5534
Citation:813 F.3d 298
Opinion Judge:CLAY, Circuit Judge.
Party Name:JEFFRY L. SMITH, Plaintiff-Appellee, v. ROCK-TENN SERVICES, INC., Defendant-Appellant
Attorney:Randall S. Thompson, HUSCH BLACKWELL LLP, St. Louis, Missouri, for Appellant. Heather Moore Collins, COLLINS & HUNTER, PLLC, Brentwood, Tennessee, for Appellee. Randall S. Thompson, HUSCH BLACKWELL LLP, St. Louis, Missouri, Hillary L. Klein, HUSCH BLACKWELL LLP, Chattanooga, Tennessee, for Appell...
Judge Panel:Before: CLAY and ROGERS, Circuit Judges; THAPAR, District Judge.[*]
Case Date:February 10, 2016
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

In 2010, plaintiff started work at defendant’s Murfreesboro plant and was informed about the company’s sexual harassment policy. Plaintiff observed Leonard “come up behind” another man, “grab[] him in the butt,” and then sniff his finger. Twice, Leonard came up behind plaintiff and touched him inappropriately; both times plaintiff warned him. A month later, Leonard came up behind him again, “gra... (see full summary)


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813 F.3d 298 (6th Cir. 2016)

JEFFRY L. SMITH, Plaintiff-Appellee,


ROCK-TENN SERVICES, INC., Defendant-Appellant

No. 15-5534

United States Court of Appeals, Sixth Circuit

February 10, 2016

Argued January 15, 2016.

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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.


Randall S. Thompson, HUSCH BLACKWELL LLP, St. Louis, Missouri, for Appellant.

Heather Moore Collins, COLLINS & HUNTER, PLLC, Brentwood, Tennessee, for Appellee.


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.

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


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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.


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] 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

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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.

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

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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, 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...

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