                                 NO. COA14-326

                      NORTH CAROLINA COURT OF APPEALS

                           Filed: 21 October 2014


PENNY FOX,
     Plaintiff,

       v.                                  Forsyth County
                                           No. 09 CVS 8153
SARA LEE CORPORATION and JOHN
ZIEKLE,
     Defendants.


       Appeal by plaintiff from order entered 3 December 2013 by

Judge David L. Hall in Superior Court, Forsyth County.              Heard in

the Court of Appeals 9 September 2014.


       Stephen A. Boyce, for plaintiff-appellant.

       Constangy, Brooks &       Smith,    LLP   by   Robin   E.   Shea,   for
       defendants-appellees.


       STROUD, Judge.


       Plaintiff appeals the trial court order granting defendant

Sara    Lee     Corporation’s    motion    for    summary     judgment     and

dismissing her claim.       Because plaintiff failed to present any

evidence that defendant Sara Lee ratified the tortious actions

of its employee, defendant John Ziekle, we affirm the trial

court’s       order   granting   summary     judgment       and    dismissing

plaintiff’s claim.
                                        -2-
                                I.     Background

      In 2005, plaintiff and defendant Ziekle were both employees

of defendant Sara Lee and worked “in the Sara Lee Corporation

Madison     Park     facility     in   Winston-Salem,        North     Carolina.”

Plaintiff was employed as an analyst in defendant Sara Lee’s

business government department, while defendant Ziekle worked in

the information technology department and one of his duties was

to   service    “the   computer      systems   the    Plaintiff   used    in   her

work.”      This case arises out of defendant’s Ziekle’s alleged

sexual assault of plaintiff on 24 August 2005.                        Plaintiff’s

complaint      was   previously      dismissed   by    the   trial     court   and

appealed to this Court. Fox v. Sara Lee Corp., 210 N.C. App.

706, 707, 709 S.E.2d 496, 498            (2011) (“Fox I”).           We set forth

the procedural background for this case in the first appeal, in

Fox I:

                 Penny Fox (Plaintiff) filed a complaint
            against Sara Lee Corporation (Sara Lee) and
            John Ziekle (Mr. Ziekle) (collectively,
            Defendants) on 24 September 2009. In her
            complaint, Plaintiff alleged that she had
            been an employee at Sara Lee, and that Mr.
            Ziekle had been a co-worker. Plaintiff
            contended   that   she  had   been   sexually
            assaulted by Mr. Ziekle and, as a result,
            suffered severe mental health problems that
            led to the loss of her job with Sara Lee.
            Plaintiff   asserted   claims   of   assault,
            battery,   false  imprisonment,   intentional
            infliction    of  emotional    distress   and
                               -3-
         negligence, and sought damages. Sara Lee
         filed a motion to dismiss pursuant to N.C.
         Gen. Stat. § 1A–1, Rule 12(b)(6), contending
         that all of Plaintiff’s claims were barred
         by the statute of limitations. In an order
         entered 21 January 2010, the trial court
         granted Sara Lee’s motion and dismissed
         Plaintiff’s complaint in its entirety with
         prejudice. Plaintiff appeals.

Id. at 707, 709 S.E.2d at 497-98.

    In Fox I, we determined that plaintiff had abandoned “her

claims for assault, battery, and false imprisonment.”      Id. at

708, 709 S.E.2d at 498.   The only remaining issue in Fox I was

“whether the trial court properly granted Sara Lee’s motion to

dismiss Plaintiff’s claims based on emotional distress” because

they were barred by the statute of limitations.   Id.   In Fox I,

this Court reversed the dismissal of plaintiff’s claim based on

the statute of limitations because

         Plaintiff’s complaint sufficiently alleged
         that:   (1) Plaintiff became an incompetent
         adult for the purposes of tolling the
         statute of limitations; and (2) Plaintiff
         was under a disability at the time she
         suffered the severe emotional distress which
         caused her claims to accrue. Therefore, we
         reverse the trial court’s order granting
         Sara Lee’s N.C.G.S. § 1A–1, Rule 12(b)(6)
         motion to dismiss as to Plaintiff’s claims
         for emotional distress and remand to the
         trial court.

Id. at 715, 709 S.E.2d at 502 (quotation marks omitted).    Fox I

was filed 5 April 2011.     See Fox I, 210 N.C. App. 706, 709
                                          -4-
S.E.2d 496.

       On 25 April 2011, defendant Sara Lee answered plaintiff’s

complaint and alleged various defenses.                     On 29 May 2012, the

trial court entered default against defendant Ziekle based upon

his failure to file “an answer, motion, or other responsive

pleading, and he has not obtained an enlargement of time to do

so.”     On 29 August 2013, the trial court entered a default

judgment against defendant Ziekle ordering him to pay plaintiff

$752,492.00;         this   default     judgment    was     entered       without    any

prejudice to defendant Sara Lee.

       On 18 November 2013, plaintiff voluntarily dismissed her

claim   for   negligent        infliction    of    emotional       distress     against

defendant     Sara      Lee.      Thus,     the    only     remaining      claim     was

plaintiff’s     claim       against    defendant    Sara    Lee     for    intentional

infliction      of    emotional       distress,    based    upon    defendant       Sara

Lee’s alleged ratification of defendant Ziekle’s conduct.                           On 4

November 2013, defendant Sara Lee filed for summary judgment

alleging plaintiff’s claim was “barred because she cannot create

a genuine issue of material fact that Sara Lee ratified the

alleged conduct of Defendant” Ziekle. On 3 December 2013, the

trial   court    granted       defendant    Sara    Lee’s    motion       for   summary

judgment      and     dismissed       plaintiff’s     only     remaining         claim.
                                         -5-
Plaintiff appeals.

                               II.    Summary Judgment

       Defendant Sara Lee’s motion for summary judgment alleged

three   possible       bases    for    the    trial      court    to   grant    summary

judgment      dismissing      plaintiff’s      claim:      (1)    expiration    of    the

statute of limitations, (2)              workers’ compensation exclusivity

bars    the    claim,    and    (3)    lack    of     sufficient       evidence      that

defendant      Sara     Lee     ratified      defendant          Ziekle’s    allegedly

wrongful conduct.        The order granting summary judgment does not

state which of the rationales the trial court relied upon in

dismissing plaintiff’s claim. Much               of      plaintiff’s     argument      on

appeal addresses her severe emotional distress and details of

her disability, psychiatric diagnoses, and treatment.                        We do not

doubt   the    validity       and    seriousness      of    plaintiff’s      emotional

distress.      We will assume arguendo for purposes of this appeal,

viewing the evidence in the light most favorable to plaintiff,

that her mental health was so severely impaired that the statute

of limitations was tolled and that her claims were therefore

timely filed.         For this reason, we will not address plaintiff’s

arguments      regarding       the    severity      of     her    distress     and   its

ramifications on her daily life nor will we address the statute

of limitations; we will address only the merits of plaintiff’s
                               -6-
substantive claim, which is that defendant Sara Lee is liable to

her for intentional infliction of emotional distress because it

ratified defendant Ziekle’s allegedly tortious conduct.

    Thus turning to the trial court’s summary judgment order on

the merits of plaintiff’s claim:

              A trial court appropriately grants a
         motion   for   summary    judgment   when  the
         information contained in any depositions,
         answers to interrogatories, admissions, and
         affidavits presented for the trial court’s
         consideration, viewed in the light most
         favorable to the non-movant, demonstrates
         that there is no genuine issue of material
         fact and that the movant is entitled to
         judgment as a matter of law. As a result, in
         order to properly resolve the issues that
         have been presented for our review in this
         case, we are required to determine, on the
         basis of the materials presented to the
         trial court, whether there is a genuine
         issue as to any material fact and whether
         the moving party is entitled to judgment as
         a matter of law.       Both before the trial
         court and on appeal, the evidence must be
         viewed in the light most favorable to the
         nonmoving party and all inferences from that
         evidence must be drawn against the moving
         party and in favor of the non-moving party.
         When   there  are   factual    issues   to  be
         determined that relate to the defendant’s
         duty, or when there are issues relating to
         whether a party exercised reasonable care,
         summary judgment is inappropriate. We review
         orders granting or denying summary judgment
         using a de novo standard of review, under
         which this Court considers the matter anew
         and freely substitutes its own judgment for
         that of the trial court.
                                             -7-
Trillium       Ridge    Condominium         Ass'n,    Inc.     v.   Trillium      Links   &

Village, LLC, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___ (Sept.

16,    2014)     (No.     COA14-183)        (citations,        quotation     marks,     and

brackets omitted).

       Plaintiff argues that there are genuine questions raised by

the evidence as to several facts:                    (1) “whether Prudy Yates was

the Plaintiff’s immediate supervisor on August 24, 2005[;]” (2)

“whether Manager Yates told the Plaintiff not to report the

Ziekle assault[;]” (3) “whether Manager Yates ever reported the

Ziekle         assault[;]”         and      (4)      “[w]hether       Manager       Yates’

instructions to not report the Ziekle assault and her failure to

immediately report the assault herself were done in the line of

duty     and     within      the    scope     of     Manager    Yates’      employment.”

(Original        in    all    caps.)         Plaintiff       notes    in    her     brief,

deposition        testimony        and   affidavits       that       present      slightly

varying descriptions of each of these facts.                        To the extent that

there are any genuine issues raised by the evidence, we find

that they are not material, since even if we view the evidence

in the light most favorable to plaintiff, it does not support

ratification by defendant Sara Lee.

       In August of 2005, defendant Ziekle worked in defendant

Sara   Lee’s      information       technology        department      and   one    of   his
                                    -8-
duties was to service “the computer systems the Plaintiff used

in her work.”    Plaintiff testified in her deposition that late

in the day on Wednesday, 24 August 2005, she was preparing to

leave work when defendant Ziekle came up behind her, trapped her

in her cubicle, put his arm around her neck, and fondled her

breast against her will.     Plaintiff acknowledged that prior to

the 24 August 2005 incident she could not remember thinking or

feeling   anything   specifically    “off   putting”   about   defendant

Ziekle.

    After plaintiff got home from work, she called Ms. Prudy

Yates, a manager in her department, and told her what defendant

Ziekle had done to her.     According to plaintiff, Ms. Yates told

her told her to not report defendant Ziekle’s alleged wrongful

conduct, and if she did report it, she should not provide names.

The evidence shows, as summarized by plaintiff’s brief, that

                [t]he day after the Ziekle assault and
           the telephone conversation with Manager
           Yates, Plaintiff Fox called HR Director
           Bostwick and arranged to meet with her the
           following Friday. (App. P. 36, Fox Dep. Vol.
           I, P. 235, L. 1-10)
                Plaintiff Fox first met with Director
           Bostwick on Friday, August 26 and again on
           Wednesday, August 31, 2005. The Plaintiff
           testified that she described the Ziekle
           assault and her telephone conversation with
           Manager Yates during both meetings. She told
           Director Bostwick that Manager Yates had
           told her not to report the assault. Director
                                            -9-
            Bostwick told the Plaintiff that                  she would
            investigate  the Manager Yates                     telephone
            conversation, but the Plaintiff                   could not
            refer to Manager Yates in any                      complaint
            about the Ziekle assault. (App.                   P. 38-51,
            Fox Dep. Vol. I, P. 237, L. 11 –                 P. 250, L.
            10)[.]

      Whatever the truth may be about who first notified Ms. Amy

Bostwick and how,1 it is undisputed that she was the Director of

Human    Resources   and    that      she    initiated      the   investigation   of

defendant Ziekle immediately upon plaintiff’s report to her.

      Ms. Bostwick then contacted Mr. Nathan Chapman, who was the

Senior    Human   Resources     Manager           over   defendant   Ziekle’s   work

department.       Mr.      Chapman          interviewed     defendant    Ziekle   on

Friday, 2 September 2005; defendant Ziekle claimed that he did

not   recall   whether     he   had    inappropriately         touched   plaintiff.

Because    defendant     Ziekle       did    not     deny   the   allegation,     Mr.

Chapman suspended defendant Ziekle that same day.                          Defendant

Ziekle never returned to work at defendant Sara Lee after that

day, and he was officially terminated on 12 September 2005.



1
  In her deposition Ms. Yates testified that on Thursday, 25
August 2005, she went to check on plaintiff. Ms. Yates said she
asked plaintiff if she had contacted Ms. Bostwick; plaintiff
informed her she did not have her phone number; so Ms. Yates
gave plaintiff Ms. Bostwick’s phone number and said, “You have
got to call her.”    Ms. Bostwick’s affidavit states that on 25
August 2005, Ms. Yates contacted her and told her she “needed to
get in touch with” plaintiff.
                                       -10-
There   was   no   contact    between    plaintiff      and   defendant    Ziekle

after the 24 August 2005 incident.              Plaintiff never returned to

work with defendant Sara Lee, except for a few days in December

2005, though from the perspective of defendant Sara Lee she was

free to do so.       On 31 August 2006, plaintiff claims she received

a letter of termination because she “had been out on medical

leave for one year.”2

     In considering the alleged genuine issues of material fact

posited by plaintiff, even if we assume that (1) “Prudy Yates

was the plaintiff’s immediate supervisor on August 24, 2005[;]”

(2) “Manager Yates told the Plaintiff not to report the Ziekle

assault[;]”    (3)    “Manager       Yates    [never]   reported     the   Ziekle

assault[;]” and (4) “Manager Yates’ instructions to not report

the Ziekle assault and her failure to immediately report the

assault herself were done in the line of duty and within the

scope of Manager Yates’ employment[;]” this does not demonstrate

that defendant Sara Lee ratified defendant Ziekle’s actions.

     Essentially,      at    best,    plaintiff    claims     that   Ms.   Yates’

erroneous advice -- not to report the defendant Ziekle’s assault

-- caused her to delay reporting defendant Ziekle’s actions to

Ms. Bostwick for a period of time from the evening of 24 August

2
   There are no issues on appeal regarding plaintiff’s medical
leave or ultimate termination with defendant Sara Lee.
                                         -11-
2005 until 25 August 2005.              As summarized by plaintiff’s brief,

“[t]he   day     after         the    Ziekle    assault         and     the       telephone

conversation      with     Manager       Yates,    Plaintiff           Fox    called    HR

Director Bostwick and arranged to meet with her the following

Friday[,]” which was the Friday after the Wednesday on which the

incident occurred.             We are unable to discern what effect, if

any, Ms. Yates’ allegedly erroneous instructions to plaintiff

had   upon      plaintiff’s          actions,     as     she     disregarded         these

instructions and on Thursday called to arrange an appointment

with Ms. Bostwick and met with her on Friday.                                There is no

dispute that from the time that plaintiff notified Ms. Bostwick,

defendant      Sara    Lee       investigated          the     claim     promptly      and

terminated defendant Ziekle’s employment.

      Plaintiff’s theory of ratification is based solely upon one

phone call in which she alleges Ms. Yates told her not to report

the incident, but if she did, not to use the name of the party

involved.      In Denning-Boyles v. WCES, Inc., this Court described

the   legal    bases     for    an    employer’s       liability       for    a    wrongful

intentional act by an employee as follows:

                   An employer may be held liable for the
              torts of an employee under the doctrine of
              respondeat superior in circumstances where:
              (1) the employer expressly authorizes the
              employee’s act; (2) the tort is committed by
              the employee in the scope of employment and
                       -12-
in furtherance of the employer’s business;
or (3) the employer ratifies the employee’s
tortious conduct.      For plaintiff to have
survived summary judgment as to [defendant],
therefore, the evidence must necessarily
have tended to show that the acts of [co-
worker] and the conduct of [defendant] fell
into one of the aforementioned categories.
We conclude plaintiff presented a sufficient
forecast of the evidence to move forward on
the theory of ratification, and thus do not
discuss the remaining categories.
     This Court has held that:
     In order to show that the wrongful
     act   of   an   employee     has    been
     ratified by his employer, it must
     be shown that the employer had
     knowledge of all material facts
     and circumstances relative to the
     wrongful    act,     and    that     the
     employer, by words or conduct,
     shows an intention to ratify the
     act.
In addition,
     the jury may find ratification
     from any course of conduct on the
     part   of    the    principal     which
     reasonably    tends     to    show    an
     intention on his part to ratify
     the   agent’s    unauthorized      acts.
     Such course of conduct may involve
     an omission to act.
     Finally, although the employer must
have   knowledge    of   all    material      facts
relative to its employee’s acts in order to
effect ratification,
     if the purported principal is
     shown to have knowledge of facts
     which would lead a person of
     ordinary prudence to investigate
     further, and he fails to make such
     investigation,      his     affirmance
     without qualification is evidence
     that he is willing to ratify upon
                                        -13-
                  the knowledge which he has.

123    N.C.    App.     409,    411-15,      473    S.E.2d    38,    40-42     (1996)

(citations, quotation marks, and brackets omitted).                    Black’s Law

Dictionary defines “ratification” as “[a]doption or enactment”

or “[c]onfirmation and acceptance of a previous act, thereby

making   the    act     valid   from   the    moment     it   was   done”    or    “[a]

person’s      binding     adoption     of    an    act   already     completed[.]”

Black’s Law Dictionary 1376 (9th ed. 2009).

       Plaintiff contends that her case is analogous to Brown v.

Burlington Industries, Inc., in which the plaintiff told her

supervisor over the course of approximately two years about her

co-workers’ numerous acts of alleged sexual harassment, but the

supervisor failed to take any action to protect the plaintiff or

to investigate her claims.             See Brown, 93 N.C. App. 431, 432,

378 S.E.2d 232, 233 (1989), disc. review improvidently allowed

per curiam, 326 N.C. 356, 388 S.E.2d 769 (1990).                       Eventually,

the plant manager found out about the plaintiff’s co-worker’s

conduct and fired him within approximately a month of receiving

the information.         Id. at 432-33, 378 S.E.2d at 233.              This Court

determined     that     the     supervisor’s       inaction    ratified      the   co-

worker’s tortious conduct.             See id. at 437-38, 378 S.E.2d at

236.
                                       -14-
       In Denning-Boyles, this Court also found that the defendant

employer ratified the offending employee’s action where multiple

co-workers complained over a span of approximately four months

about the repeated tortious conduct.                See id. at 415, 473 S.E.2d

at    41.   In    Denning-Boyles,     the    plaintiff       was   asked    to    stop

complaining and the defendant ultimately decided the offending

employee would keep his employment with defendant and plaintiff

should be the one to leave.            See id. at 416-17, 473 S.E.2d at

43.

       This case is entirely distinguishable from both Denning-

Boyles and Brown.          Contrast Denning-Boyles, 123 N.C. App. 409,

473 S.E.2d 38; Brown, 93 N.C. App. 431, 378 S.E.2d 232.                           Here,

plaintiff contacted Ms. Bostwick the day after the incident, met

with her within two days of the incident, and Ms. Bostwick took

immediate        action   to   investigate    the    claim    against      defendant

Ziekle, which resulted in Ziekle’s termination within the month.

       In order to prove ratification, plaintiff must first show

that defendant Sara Lee “had knowledge of all material facts and

circumstances        relative    to   the    wrongful    act,      and     that    the

employer, by words or conduct, show[ed] an intention to ratify

the act.”        Denning-Boyles, 123 N.C. App. at 415, 473 S.E.2d at

42.    There was only one act alleged here, the 24 August 2005
                                              -15-
groping by         defendant      Ziekle, and not a continuing course of

conduct,      as    in    Denning-Boyles         and    Brown.       Contrast      Denning-

Boyles, 123 N.C. App. 409, 473 S.E.2d 38; Brown, 93 N.C. App.

431, 378 S.E.2d 232.              Even taking the evidence in the light most

favorable to plaintiff, and assuming that plaintiff described

“all    material         facts    and    circumstances”       to    Ms.    Yates     on   the

phone, Denning-Boyles, 123 N.C. App. at 415, 473 S.E.2d at 42,

the    only   time       period    during       which    defendant     Sara    Lee    could

possibly      be     considered          as    “ratifying”       defendant      Ziekles’s

conduct would be from the time of the phone call until Plaintiff

met with Ms. Bostwick within two working days of the incident.

Whatever      Ms.    Yates       told     plaintiff      on   the     phone,    plaintiff

reported the incident to the proper personnel of defendant Sara

Lee,    and        defendant       Sara        Lee     immediately        initiated       the

investigation,           which    was,    as    a    practical      matter,    the    first

opportunity that defendant Sara Lee had to address the incident.

       Furthermore, plaintiff has not demonstrated “any course of

conduct on the part of [defendant Sara Lee] which reasonably

tends to show an intention on [its] part to ratify [defendant

Ziekle]’s unauthorized acts. Such course of conduct may involve

an    omission      to    act.”         Id.     Defendant      Sara    Lee    immediately

initiated      an    investigation,           which     was   completed      quickly      and
                              -16-
resulted in Ziekle’s termination.

    In fact, we are not sure how defendant Sara Lee could have

acted much more quickly and decisively in its investigation of

plaintiff’s   claims.   Instead   of   ratifying,   or   even   briefly

tolerating, defendant Ziekle’s conduct, defendant Sara Lee took

action to protect plaintiff from further wrongful conduct on his

part.   As plaintiff failed to forecast sufficient evidence that

defendant Sara Lee ratified defendant Ziekle’s conduct or any

other basis for respondent superior liability, we conclude that

the trial court properly granted defendant Sara Lee’s motion for

summary judgment.

                         III. Conclusion

    For the foregoing reasons, we affirm.

    AFFIRMED.

    Judges MCGEE and BRYANT concur.
