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Barnett v. B.F. Nashville, Inc.

Court of Appeals of Tennessee, Nashville

May 30, 2017


          Session January 18, 2017.

         Appeal from the Circuit Court for Davidson County No. 14C3213 Joseph P. Binkley, Jr., Judge No. M2016-00762-COA-R3-CV

         Tysheka 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 affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

          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., joined.




         Plaintiff 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."

         Plaintiff 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.

         Rogers 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 "gift."

         Plaintiff 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 greater detail.

         On July 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."

         Nine 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.

         On 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.

         Employer 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.

         The 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.


         Plaintiff 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 the bench.
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.


         In this 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).



         Plaintiff 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.

         The 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.

         In its 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.


         The 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. 2010).

         In 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)).

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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 ...

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