Court Upholds Large Sexual Harassment Verdict for Same-Sex Touching

By Jeffrey L. Rhodes Mar 2, 2016
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Sufficient evidence supported a $300,000 sexual harassment verdict for a male employee repeatedly touched on the buttocks by a male co-worker known to have engaged in prior misconduct, the 6th U.S. Circuit Court of Appeals ruled.

Rock-Tenn Services Inc., a corrugated box company, hired Jeffry L. Smith to work at its Murfreesboro, Tenn., plant in August 2010. Smith worked in the converting department as a technician on a die-cutter machine known as the 450, which his colleague Clinton Gill operated. Smith loaded boxes and helped run and unjam the machine. The converting department was approximately 70 percent male and 30 percent female. Rock-Tenn provided Smith with a copy of its sexual harassment policy during orientation. 

In December 2010, an employee named Jim Leonard returned to Rock-Tenn from medical leave and worked near Smith. On the day of his return, Smith saw Leonard approach Gill from behind and grab him in the butt. Sometime later, Leonard slapped Smith on the rear, and Smith told Leonard not to touch him. One week later, Leonard again grabbed Smith on the rear; Smith then grabbed Leonard by the arm, put his finger in Leonard’s face and demanded that Leonard never touch him again. Smith’s reactions followed Rock-Tenn’s sexual harassment policy, which requires subjects of harassment to directly tell a harasser to stop before bringing concerns to management. 

About a month later, in June 2011, Smith was working at another machine and was bending over to load boxes onto a pallet. Leonard came up behind Smith, grabbed his hips, and began hunching over Smith to simulate sex. Smith turned around, grabbed Leonard by the throat for about 30 seconds, lifted him off the ground and castigated Leonard. Smith told Gill about the incident, and Gill told Smith to go outside and calm down. When Smith returned, Leonard apologized and told Smith, “I didn’t know how far I could go with you.” Smith was so upset that Gill sent him home.

That weekend, Smith complained to a co-worker, who told the plant superintendent, Scott Keck, about the incident. Smith reported to Keck the incidents involving Leonard. Keck said nothing could be done until the following Friday, when the operations manager returned from vacation. Keck sent Smith back out to work 10-15 yards away from Leonard, and the two were also sent to get a hearing test together. On Wednesday of the next week, Smith suffered an anxiety attack. The next day, Smith submitted a letter to management documenting the incidents with Leonard. The letter stated that Smith knew Leonard had done this to others, and stated Smith’s concerns for his physical safety.

In response to the letter, four senior managers of Rock-Tenn called a meeting to discuss the incident. In that meeting, prior incidents and rumors of incidents were discussed concerning Leonard. Three of the managers recommended termination, but the general manager, Wade Phillips, did not agree. Instead, Phillips placed Leonard on a short suspension. The managers did not document their conclusions, as required by the sexual harassment policy, nor did they follow a prior written disciplinary write-up of Leonard’s that stated that future misconduct would lead to discharge.

Smith never returned to Rock-Tenn, and thereafter was unable to work due to anxiety. He brought suit in federal district court claiming sexual harassment, wrongful discharge and retaliation. The district court granted summary judgment to Rock-Tenn on the wrongful discharge and retaliation claims, but allowed the sexual harassment claim to go to trial. At trial, Smith testified to Leonard’s conduct and presented evidence of his departure from Rock-Tenn and medical condition thereafter, obtaining a $300,000 verdict.

On appeal, Rock-Tenn argued that Smith should not have been allowed to present evidence concerning his departure and subsequent medical condition because his only remaining claim was sexual harassment (and not wrongful discharge). Rock-Tenn also claimed that there was insufficient evidence of severe and pervasive conduct of a sexual nature, because there were only a few incidents in a nearly all-male environment.

The 6th Circuit rejected Rock-Tenn’s arguments, finding that the evidence of Smith’s subsequent medical condition related to his claim, and the passing references to his discharge did not require a new trial. The 6th Circuit also found that multiple incidents of touching over a relatively short time period established severe and pervasive misconduct, and that the conduct related to Smith’s male gender.

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

Professional Pointer: Many employers think that they have complied with the laws against sexual harassment merely by having a policy in place and conducting an investigation when a complaint is made. However, the content of the policy is important, and compliance with that policy and the employer’s progressive discipline policy is necessary to fully protect a company from liability.

Jeffrey L. Rhodes is an attorney with Doumar Martin PLLC in Arlington, Va.

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