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Smith v. Rock-Tenn Services, Inc., No. 15-5534 (6th Cir. Feb. 10, 2016)

The Sixth Circuit affirms a $300,000 judgment for the male victim of same-sex harassment under Title VII. The panel underscores the imperative for employers to be vigilant against complaints of sexual contact, even when the conduct (in a male-dominated workplace) might be characterized by some as "horseplay."

Smith v. Rock-Tenn Services, Inc., No. 15-5534 (6th Cir. Feb. 10, 2016): plaintiff Smith was a machine-operator at a box factory, a workplace that was majority (70%) male. Over several months, he was pursued by a male co-worker named Leonard. It started with slaps on and clutching at Smith's butt, which Smith immediately protested to Leonard. The second time it happened, "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.'"

After the third incident, a month into the harassment, Smith complained to his operator, named Gill, "who told plaintiff to go outside and calm down," and then sent him home. No action was taken against Leonard. That weekend, "plaintiff spoke to a friend and colleague ... who told plant superintendent [Keck] about the incident before plaintiff arrived on the morning of Monday, June 6, 2011."

At the daily safety meeting that Monday, plaintiff brought the incident to the attention of his direct supervisor, named Odum, who, according to plaintiff's testimony, stated to plaintiff "that Leonard had 'done . . . this again.'" Smith was called into a meeting with the plant superintendent, named Keck, who "stated that nothing could be done until the following Friday because his supervisor, operations manager [Hunter], was on vacation. At the conclusion of this meeting, Keck sent plaintiff back out to work in the same areas Leonard."

The employer first started to take corrective action some ten days after Smith's first complaint, when Smith delivered a letter to management seeking medical leave; "I have an appointment to seek counseling [sic] for the Sexual Harassment [sic] I have received [sic] before returning to work." A group of managers investigated, yet despite their recommending that Leonard be terminated, the general manager (McIntosh) turned it into a two-day suspension. McIntosh was not informed that Leonard had previously been suspended for an other incident with a male coworker, with a warning that any future violations would result in immediate termination.

Smith never returned to work, owing to anxiety and PTSD. He brought suit for harassment under Title VII and state law (the latter claim was dismissed on timing grounds). At trial, the jury awarded the plaintiff $307,000 in compensatory damages, which the district court capped at $300,000 under Title VII.

The Sixth Circuit affirms. Initially, the panel observes that in a case involving same-sex harassment - under Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) - Smith could prove that harassment was "because of sex" by "persuad[ing] the jury that Defendant operated a mixed-sex workplace in which Leonard exposed men and only men to unwelcome touching." Because Smith's testimony that the workplace was 30% female was "uncontroverted," the panel holds that "we cannot adopt Defendant's characterization of its plant as a gender-segregated workplace." And because Leonard testified that touched at least seven colleagues, all of them male," the jury could infer a sex-based motivation.

The jury also could have found the conduct to be severe or pervasive. Although the employer on appeal continued to characterize the repeated sexual contacts as "horseplay," the panel holds that "the jury apparently found that pinching and slapping someone on the buttocks or grinding one's pelvis into an other's behind goes far beyond horseplay," a finding supported by the record. Moreover, "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" and "the three incidents between him and Leonard took place over the course of a few months," indeed just a week separating the first and second incidents.

The panel holds that There was sufficient evidence that the company failed to respond appropriately:

"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 nneither prompt nor appropriate in light of what it knew or should have known regarding Leonard's prior misconduct."

Finally, the panel affirms the denial of a new trial based on evidentiary issues. It holds that the admission of testimony by other victims of other harassment was relevant to establishing that Leonard's conduct was directed only at men. It also holds that evidence of plaintiff's post-employment mental health difficulties was relevant to establishing a basis for compensatory damages. Finally, while the plaintiff's attorney should not have characterized Smith's separation from the company as "los[ing] his job" in closing argument, the statement was not reversible error.

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