Session May 14, 2015.
[Copyrighted Material Omitted]
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed. Appeal from the Circuit Court for Hamilton County. No. 13C1170. W. Jeffrey Hollingsworth, Judge.
Grace E. Daniell, Chattanooga, Tennessee, for the appellant, Patricia Bazemore.
Neil A. Brunetz, Robert F. Parsley, and Jennifer W. Terry, Chattanooga, Tennessee, for the appellee, Performance Food Group, Inc.
CHARLES D. SUSANO, JR., C.J., delivered the opinion of the court, in which JOHN W. MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.
CHARLES D. SUSANO, JR.,
Patricia Bazemore brought this action against her former employer, Performance Food Group, Inc. (PFG) and Barry Pearson, a former employee of PFG. Ms. Bazemore claimed that, while she and Mr. Pearson were working for PFG, she was subjected to a pattern of unwanted sexual harassment by him -- conduct that she alleges created a hostile work environment in violation of the Tennessee Human Rights Act (THRA). As a result of the unwanted sexual harassment, Ms. Bazemore also alleged constructive discharge, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligent supervision and retention. PFG subsequently filed a motion for summary judgment, contending that no genuine issue of material fact exists in support of Ms. Bazemore's claims against PFG as an entity. The trial court ultimately granted PFG's motion for summary judgment after finding (1) no evidence of a hostile work environment; (2) facts indicating that PFG took reasonable steps to prevent sexual harassment from occurring; (3) proof that PFG's response to Ms. Bazemore's complaint was objectively reasonable; (4) insufficient evidence to support the claims of either intentional or negligent infliction of emotional distress; and (5) no proof of negligent retention and supervision by PFG. We affirm.
PFG is a Colorado corporation that operates as a food distributor throughout the United States. In April 2011, Ms. Bazemore accepted a position with PFG as an area sales manager in PFG's Chattanooga office. As an area sales manager, Ms. Bazemore was responsible for selling food products to restaurants in and around the Chattanooga area. During her time with PFG, Ms. Bazemore reported directly to Joe Davis, the District Sales Manager for PFG's Chattanooga office. In April 2012, PFG hired Mr. Pearson as an additional area sales manager.
Though Ms. Bazemore's position with PFG primarily entailed visiting customers around the Chattanooga area, she frequently had to go to PFG's office to take care of paperwork, pick up samples and products for clients, and meet with her supervisors. On September 10, 2012, Ms. Bazemore and Mr. Pearson were alone in PFG's office. While Ms. Bazemore was looking through invoices and preparing a delivery for one of her clients, Mr. Pearson made inappropriate comments and directed multiple lewd questions toward Ms. Bazemore: (1) " I'll help your a** and what a nice a** it is; " (2) " It's hard to walk with your d*ck hard; " (3) " Do you need anything licked, I mean carried?; " and (4) " Don't you bend over, don't you do it. I'll get that a**." In addition, Mr. Pearson allegedly grabbed and squeezed Ms. Bazemore's buttocks. Ms. Bazemore was able to record a portion of this encounter on her cell phone. However, she did not immediately report Mr. Pearson's behavior to PFG.
On October 3, 2012, Ms. Bazemore was again alone in the PFG office with Mr. Pearson. After a brief exchange, Mr. Pearson showed Ms. Bazemore a picture of a man's testicles. As she had done during
their September 10 encounter, Ms. Bazemore secretly recorded their interaction, and Mr. Pearson's comments were again inappropriate. Specifically, after Mr. Pearson had shown Ms. Bazemore the picture, he said, " I took this picture this morning. Look at this son of a b****. That's my ball sac. It's f***ing hanging to the ground . . . How would you like to have them babies slapping that little heinie?" In addition, Mr. Pearson allegedly slapped Ms. Bazemore on her buttocks yet again. Similar to the September 10 incident, Ms. Bazemore did not immediately report Mr. Pearson's behavior to PFG.
On October 8, 2012, Ms. Bazemore called PFG's Human Resources Director, Denise Pollock on the phone, and left a voicemail requesting that Ms. Pollock call her back. In her message, Ms. Bazemore did not provide any indication why she was contacting Ms. Pollock, who testified in her deposition that it was not unusual for an area sales manager to call her. Ms. Pollock stated that she did not return Ms. Bazemore's call because they were going to see one another at an upcoming sales meeting. However, Ms. Pollock was unable to speak to Ms. Bazemore at the sales meeting, as Ms. Pollock was too busy coordinating a health fair organized by PFG. Ms. Bazemore called Ms. Pollock again on October 17, 2012, and left a second voicemail requesting that Ms. Pollock call her back. Ms. Pollock testified that on October 18, 2012, she finally spoke with Ms. Bazemore, who briefly described her two prior encounters with Mr. Pearson. Ms. Pollock stated in her deposition that she requested that Ms. Bazemore provide her with a written statement detailing both encounters.
In her deposition, Ms. Bazemore testified that she felt more comfortable speaking with Ms. Pollock about her encounters with Mr. Pearson than she would have felt going to her supervisor, Mr. Davis. Specifically, Ms. Bazemore believed that Mr. Davis was " drinking buddies" with Mr. Pearson and that they had a similar attitude towards women. In addition, Ms. Bazemore highlighted several instances where Mr. Davis made comments that were either lewd or insulting to women. Ms. Bazemore alleged that on August 28, 2012, Mr. Davis answered two phone calls in her presence by saying " c*ck and balls" in her presence. On August 31, 2012, Ms. Bazemore secretly recorded Mr. Davis when he (1) referred to a female customer as a " fine little filly; " (2) described another female customer as " hot as hell; " (3) called female Area Sales Manager Jessi Lanuza a " dodo" and spoke to Ms. Lanuza in a mocking tone. On September 20, 2012, Ms. Bazemore secretly recorded Mr. Davis again when he referred to Ms. Lanuza as a " dodo." Finally, on September 28, 2012, Ms. Bazemore recorded Mr. Davis when he talked about a customer who had " ti**ies out to here" and rhetorically asked, " Who is this stripper?" In the end, Ms. Bazemore believed that Mr. Davis would not take her or her allegations against Mr. Pearson seriously. Ms. Bazemore, however, did not report Mr. Davis' inappropriate comments to PFG and did not disclose her secret recordings of him until after she resigned on January 15, 2013.
On October 19, 2012, Ms. Bazemore sent Ms. Pollock an email detailing her encounters with Mr. Pearson. At that time, however, Ms. Bazemore did not provide Ms. Pollock with the audio recordings she had made of Mr. Pearson or even disclose their existence. On October 22, 2012, Ms. Pollock and Mr. Davis interviewed Mr. Pearson, who admitted that he had shown Ms. Bazemore a picture of a man's testicles. Mr. Pearson, however, maintained that Ms. ...