Session January 18, 2017.
from the Circuit Court for Davidson County No. 14C3213 Joseph
P. Binkley, Jr., Judge No. M2016-00762-COA-R3-CV
Barnett brought this action solely against her employer, B.F.
Nashville, Inc., dba Wendy's of Nashville, alleging that
Wendy's general manager, William Rogers, sexually
harrassed her during her employment at a Wendy's
restaurant. After a four-day bench trial, the court found
that plaintiff had not met her burden of proof to show that
the sexual conduct between her and Rogers was unwanted, and,
therefore, she was unable to show harassment. On appeal,
plaintiff primarily argues that the evidence preponderates
against the trial court's determination that the sexual
interaction in question was not unwelcomed by plaintiff. This
ruling was driven and determined in large part by the trial
court's evaluation of the credibility, including
demeanor, of the various witnesses. Plaintiff appeals. We
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Stephen Crofford and Mary Parker, Nashville, Tennessee, for
the appellant, Tysheka Barnett.
Richard C. Mangelsdorf, Jr. and Brian F. Walthart, Nashville,
Tennessee, for the appellee, B.F. Nashville, Inc.
Charles D. Susano, Jr., J., delivered the opinion of the
court, in which Andy D. Bennett and W. Neal McBrayer, JJ.,
CHARLES D. SUSANO, JR., JUDGE
began working at Wendy's restaurant on Jefferson Street
in Nashville in late September of 2013. She was a freshman at
Tennessee State University. The Wendy's, located near the
TSU campus, was referred to by the parties as the "TSU
Wendy's." Plaintiff testified that she was getting
lunch there one day when the general manager, Rogers, asked
her if she wanted a job. Rogers denied this; he testified
that plaintiff "came down there numerous times, filling
out application[s], two or three of them, and I finally
interviewed her and gave her a job."
alleged that manager Rogers began making sexual advances to
her on the first day of her employment. She testified that
Rogers "was saying he wants me like he wanted me like
maybe as his girlfriend or he wanted to have sex with me or
do sexual activity with me." Plaintiff stated that his
conduct got progressively more aggressive over the first
several months, and that he made graphic sexual comments to
her and groped her on "several different
occasions." By December 2013, according to
plaintiff's testimony, Rogers was threatening to cut her
working hours if she continued to refuse sex with him. When
she was asked why she continued to work at the TSU
Wendy's, plaintiff said that she was unable to find
another job because she was then on probation for simple
possession of marijuana.
flatly denied the allegations of sexual harassment. He
testified that plaintiff "was a real touchy person. She
hugged and kissed, stuff on everybody." He also said
that plaintiff regularly called him on his cell phone when
neither of them was at work. In late January or early
February of 2014, plaintiff and Rogers met at a hotel room
and had sex. She testified that she felt compelled to do it
because he was beginning to carry out his threat of cutting
her hours; those hours declined in mid-December. He testified
that it was purely a sex-for-money exchange, and that they
had negotiated the price a couple of nights before. Rogers
said plaintiff wanted $400 and they agreed on that price, but
at the hotel room he only had $260, which he paid her
upfront. Plaintiff admitted that Rogers gave her $260 in the
hotel room. She testified at one point that the money was to
help her catch up on her overdue bills and to make up for
lost hours, and also testified that the money was a
continued to work at the TSU Wendy's for the first half
of 2014. Her hours remained steady until the end of June,
when they began to decrease. Plaintiff testified that Rogers
cut her hours because she refused his sexual advances after
the hotel encounter. Many of the other witnesses testified
that plaintiff got fewer hours because she was then working a
second job that required her to leave the TSU Wendy's
early. The testimony of these witnesses, which included
co-workers and assistant managers, will be discussed later in
27, 2014, plaintiff reported to work early, before the
restaurant opened, and surreptitiously recorded an
interaction between her and Rogers on her cell phone. The
recording is a videotape file, but only audio is available
during the pertinent times. This is because the phone's
video camera was apparently covered up and the file shows
only a black screen for most of the recording. On the
recording, plaintiff is heard to say, "boy, if you
don't get your hands out of my damn pants" and
"so you really not gonna take your hands out of my
pants, huh?" Rogers then asks plaintiff to go to the
ladies' bathroom and strip for him for $40. According to
Rogers, she did, and he paid her $20. According to plaintiff,
she refused. The recording is barely audible at points, and
difficult to understand throughout. The trial court found
that "Rogers said she said . . . that she would strip
for $40, and I think the tape said that, said, 'Yeah,
I'll do that.' " The evidence does not
preponderate against this finding. On the recording, it
sounds like plaintiff said "I'll strip for you . . .
I'll strip for them forty."
days later, on August 5, 2014, plaintiff filed this action
against BF Nashville, Inc. (employer), the owner of the TSU
Wendy's. She alleged employer was vicariously liable
under the respondeat superior doctrine for Rogers'
alleged sexual harassment of her, said conduct being in
violation of the Tennessee Human Rights Act (THRA), Tenn.
Code Ann. § 4-21-101 et seq. (2015). Three of
employer's executive-level managers testified: district
manager Bobby Moss, human resources manager Dale Bruner, and
director of operations Charles Pastors. All three testified
that the first time they heard of the harassment allegation
was upon receipt of the notice of the lawsuit.
August 7, 2014, two days after the complaint was filed, all
three executives traveled to the TSU Wendy's and
conducted an investigation comprised of employee interviews.
They took the statements of some fifteen employees, recording
their answers to seven pertinent questions on a written
sheet, allowing employees to write their own statements, and
having the employees sign the statements. The executives
began with William Rogers, who initially denied the
allegation of harassment, saying "none of it's
true." The investigation did not develop any
corroborating evidence suggesting any other employee's
awareness or perception of sexual harassment of anyone by
Rogers. At the end of the first day of the investigation,
Rogers came forward to human resources manager Bruner and
district manager Moss, and told them about the incident in
the ladies' bathroom, saying that he followed plaintiff
in there and she dropped her pants in return for money. They
asked him to put his statement in writing, which he did. Then
they took his restaurant keys, and asked him to leave. He
never returned to the restaurant in an employment capacity.
officially fired Rogers several days later. It is not
entirely clear from the record when Rogers became aware of
the tape recording. It appears, however, that it was at this
meeting when Bruner and Pastors told him they were
terminating his employment. After Rogers learned he was
fired, he told the executives that he and plaintiff had met
at a hotel room and had sex, saying it was consensual and
that he had paid her money.
case proceeded to a bench trial, which was conducted on
January 11 through 14, 2016. The court heard closing
arguments and delivered its opinion from the bench on January
27, 2016. The trial court held that plaintiff failed to meet
her burden of proof to demonstrate that the sexual contact
between her and Rogers was unwanted. The court concluded,
therefore, that no harassment had been demonstrated.
Additionally, and alternatively, the trial court found that
employer established its affirmative defense by showing that
"if, in fact, it was unwelcomed conduct, and I find that
it was not unwelcomed, that the employer exercised reasonable
care to prevent and correct properly any sexual harassing
behavior." The court further stated, "the record is
abundantly clear that the plaintiff had no desire to take
advantage of the preventive or corrective opportunities
provided by the employer to report sexual harassment, "
and, "I found there's no harm, but if there was
harm, I find that [plaintiff] unreasonably failed to
otherwise avoid the harm and, in fact, invited the sexual
contact." Plaintiff timely filed a notice of appeal.
raises the following issues, as paraphrased by us:
1. Whether the trial court complied with Tenn. R. Civ. P.
52.01, which requires that the court "shall find the
facts specially and shall state separately its conclusions of
law and direct the entry of the appropriate judgment, "
when it delivered its seven-hour, 185-page oral opinion from
2. Whether the evidence preponderates against the trial
court's finding that plaintiff failed to carry her burden
of proving that the sexual interactions between plaintiff and
Rogers were unwelcomed.
3.Whether the trial court erred in admitting Charles
Pastors' testimony regarding certain specific instances
of plaintiff's conduct related to him by other
Wendy's employees, said testimony being offered under
Tenn. R. Evid. 405(b).
4.Whether the trial court erred in holding that employer was
entitled to present its affirmative defense that it took
reasonable measures to prevent and correct discriminatory
conduct, and that plaintiff unreasonably failed to take
advantage of these preventative and corrective measures.
5. Whether the trial court erred in granting employer's
motions in limine to exclude evidence of a prior sexual
harassment lawsuit filed against employer that did not
involve the TSU Wendy's or any of its employees, and to
exclude evidence of Rogers' prior consensual sexual
relationship with another subordinate employee.
non-jury case, our standard of review is de novo upon the
record of the proceedings below; however, the record comes to
us with a presumption of correctness as to the trial
court's factual determinations, a presumption we must
honor unless the evidence preponderates otherwise. Tenn. R.
App. P. 13(d); Wright v. City of Knoxville, 898
S.W.2d 177, 181 (Tenn. 1995). There is no presumption of
correctness as to the trial court's legal conclusions.
Kendrick v. Shoemake, 90 S.W.3d 566, 569 (Tenn.
2002); Campbell v. Florida Steel Corp., 919 S.W.2d
26, 35 (Tenn. 1996).
argues that the trial court did not comply with Tenn. R. Civ.
P. 52.01, which requires, in pertinent part, as follows:
In all actions tried upon the facts without a jury, the court
shall find the facts specially and shall state separately its
conclusions of law and direct the entry of the appropriate
judgment. . . . If an opinion or memorandum of decision is
filed, it will be sufficient if the findings of fact and
conclusions of law appear therein.
trial court's final judgment dismissing the action with
prejudice stated as follows in pertinent part:
The Court issued an oral ruling from the bench. . . . This
Court expressly adopts by reference, and incorporates by
reference, all of . . . the Court's findings of fact and
conclusions of law contained in Exhibit A. However, to
summarize, after reviewing all of the evidence, authority,
and argument submitted by the parties, this Court finds that
Plaintiff Barnett failed to meet her burden of proof to show
that she suffered any sexual harassment as defined by law, or
other violation under the Tennessee Human Rights Act.
Furthermore, even assuming that Plaintiff did suffer some
form of sexual harassment/discrimination while employed by
the Defendant, this Court finds that Defendant B.F.
Nashville, Inc. has fulfilled its burden of proof and proved
all of the elements of the affirmative defense set forth in
Parker v. Warren County Util. Dist., 2 S.W.3d 170,
176 (Tenn. 1999). For these reasons the Plaintiff's
complaint is hereby dismissed with prejudice.
oral opinion, the trial court reviewed the testimony of all
eleven witnesses and many of the trial exhibits, making
numerous specific findings regarding the credibility of the
various witnesses. The court was very thorough. Its
transcribed opinion is 185 pages long. The time stamps on the
transcript show that the trial court began delivering its
opinion at 3:00pm and concluded at 10:09pm. We find no merit
to plaintiff's argument that the trial court failed to
comply with Rule 52.01.
THRA provides that "[i]t is a discriminatory practice
for an employer to: (1) Fail or refuse to hire or discharge
any person or otherwise to discriminate against an individual
with respect to compensation, terms, conditions or privileges
of employment because of such individual's race, creed,
color, religion, sex, age or national origin." Tenn.
Code Ann. § 4-21-401(a) (2015). It is well established
that the THRA bars sexual harassment in the workplace,
Campbell, 919 S.W.2d at 31, as does the
similarly-worded Title VII of the Federal Civil Rights Act.
Id; Parker v. Warren Cnty. Util. Dist., 2
S.W.3d 170, 172 (Tenn. 1999); Allen v. McPhee, 240
S.W.3d 803, 812 (Tenn. 2007), abrogated on other grounds by
Gossett v. Tractor Supply Co., 320 S.W.3d 777 (Tenn.
Gordon v. W.E. Stephens Mfg. Co., No.
M2007-01126-COA-R3-CV, 2008 WL 4254584, at *6 (Tenn. Ct.
App., filed Sept. 16, 2008), we observed that "[w]hile
there can be no uniform definition of sexual harassment, it
can include unwelcome sexual advances, requests for
sexual favors, or any unwelcome conduct, whether
verbal or physical, which would not likely take place but for
the plaintiff's gender." Id. (citing
Campbell, 919 S.W.2d at 31 (emphasis added)).
argues that the evidence preponderates against the trial
court's conclusion that the sexual contact between her
and Rogers was not unwelcomed. As might be expected, her
testimony is diametrically opposed, in many regards, to that
of Rogers. Rogers' testimony was successfully impeached
on several occasions, and he admitted having lied more than
once in an attempt to save his job. The trial court also
heard the testimony of two of plaintiff's co-workers,
Cameo Owens and Sidney Robinson, and generally credited that
testimony. Two assistant managers, Marjorie Ann Martin and
Rashleigh Braithwaite, also testified.
testified that Rogers harassed her "constantly, the
whole time I was there from the first day[.]" She said
that the harassment occurred almost every day that she worked
at the TSU Wendy's. The trial court noted that no other
witness corroborated this allegation. Plaintiff answered
"correct" when she was asked, "it's your
testimony . . . that you were being harassed by your manager
at work but no one else in the restaurant even knew about it
except you and him; is that right?" Plaintiff further
testified as follows:
Q. Okay. And the truth of the matter is, ma'am, with all
due respect, you were in close proximity to all these
co-workers, sometimes as many as 12 other people working with
you on a shift for six hours at a time?
A. Yeah. They're just people, people I don't know. .
. . I'm not going to tell them my personal information
because that's just like walking up to a total stranger.
Q. And during these six-hour shifts, you would sometimes even
bump into other people because you're just working in
such close quarters; right?
A. I guess you could say. I mean, if there's 12 people
working a compact area, I'm pretty sure.
said that the reason no one else at the restaurant observed
any harassing behavior is that Rogers would call her in early
when no one else was working "and ...