                                                                                          05/30/2017




                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                January 18, 2017 Session

    TYSHEKA BARNETT v. B.F. NASHVILLE, INC. DBA WENDY’S OF
                         NASHVILLE

                 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
                             Affirmed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which ANDY D.
BENNETT and W. NEAL MCBRAYER, JJ., joined.


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.
                                       OPINION

                                            I.

        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.
                                           -2-
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.

                                             -3-
        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.

                                             II.

       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

                                            -4-
             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.

                                          III.

       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).

                                          IV.

                                          A.

      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.



                                          -5-
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.

                                            B.

       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).

                                           -6-
       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.

                                              -7-
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 get me alone
when there’s no cameras.”

        Co-worker Owens’ testimony contradicted this statement. She testified that
plaintiff’s usual morning shift began at 10:00 or 10:30am. Owens’ normal shift started at
7:00am, and did not fluctuate. Owens testified that plaintiff was never already at the
Wendy’s when Owens got there. She also said that she never discovered that plaintiff
had been in the store alone with Rogers when Owens reported to work at 7:00.

       Owens testified that she never saw anything that she considered sexual harassment
at the TSU Wendy’s, nor did she ever hear anyone complain about such harassment. In
response to a question of whether plaintiff ever did “anything sexually suggestive” to her,
she stated that while they were working together, plaintiff “would touch me and say I
want you, or I like you.” Owens testified that plaintiff did not “seem like the kind of
person that was hesitant to share personal details.” She said that plaintiff told her about
the hotel incident while they were at work, stating:

              A: She said promise you ain’t gonna tell nobody. . . . I said
              ain’t gonna tell, Tysheka. She said, okay, I’m fixin’ to tell
              you, and then she said she had sex with Mr. [Rogers].

                                   *      *         *

              Q. Okay. Tell me the details that she gave you about the
              sexual contact.

              A. She said she had sex with Mr. [Rogers] in a room for
              $500.

              Q. Okay. Did she seem upset or sad when she told you this?

              A. No, sir.

              Q. Can you describe for the Court [plaintiff’s] demeanor
              when she told you this?

              A. She told me like she was all right with it, like she was
              confident, like she didn’t have no problems. She was just ‒
              she needed some money to take care of a bill or her car.

                                              -8-
      When plaintiff was asked if she ever told Owens that she had sex with Rogers for
money, she responded, “I absolutely do not remember . . . I mean, it’s possible it could
have happened.” The trial court specifically found Owens’ testimony to be credible.

        Sidney Robinson, another co-worker who started working there her junior year in
high school and was no longer working there at time of trial, testified that she was never
harassed at the TSU Wendy’s. She said she felt like she would be protected if that had
happened, because of the “good managers that we have” that “followed the [sexual
harassment] policy.” Robinson never saw Rogers interact inappropriately with plaintiff
or anyone else. She also stated that she was unaware of “any discussion or rumor”
among the employees that sexual harassment was occurring at the restaurant. When she
was asked, “in the restaurant where Mr. Rogers was the boss, did you see any evidence in
the restaurant of a hostile environment for women?” she replied “no.” Robinson initially
testified that she overheard plaintiff “on the line bragging about” selling her body for
cash. She later retreated from this statement, recanting that she had heard plaintiff say
she sold her body “for cash” and testifying that plaintiff “does certain things . . . trying to
hit on somebody in a . . . blurred way.” The trial court specifically credited Robinson’s
testimony.

        Marjorie Ann Martin, an assistant manager, also testified. She was unaware of
any sexual harassment complaint that any Wendy’s employee had made prior to this
lawsuit. She testified that Rogers was a good manager who took care of his employees,
that she never witnessed or heard of any harassment by Rogers, and that she was shocked
when she heard of plaintiff’s allegation. Martin worked the night shift with plaintiff for a
fairly brief time. She testified as follows about her interaction with plaintiff:

              Q. Did [plaintiff] have any problem with sharing personal
              information with you at the workplace?

              A. No, sir, she did not.

              Q. Did she have any problem sharing information with you
              about her personal relationships?

              A. No, sir, she did not.

              Q. Did she seem hesitant to talk about private matters such as
              her relationships with men?

              A. Let’s just say she talked about it a lot.

                                             -9-
              Q. Well, why don’t you explain what you mean by that?

              A. Okay. [Plaintiff] had this tendency to – let’s just say,
              sexual harassment from Mr. William Rogers may be an
              extreme. It might be sexual harassment ‒ sexual harassment
              from [plaintiff].

              Q. What do you mean?

              A. [Plaintiff] would say things to me and to other employees
              which made me have to stop her from saying because it got
              too offensive.

Assistant manager Martin also related to the trial court an incident where plaintiff
described “an idea” to sue another manager at an Arby’s restaurant where she also
worked for racial harassment:

              A. [Plaintiff] bragged about how she had the boss wrapped
              around her finger. She could get her way from him ‒ get her
              way from him is what she said. [Plaintiff] started to work
              nights with me. She kept saying how bad she needed money.
              She told me she came up with this idea. She said the manager
              at Arby’s was mistreating her. She said the manager was
              white and thought she was racially harassing her. I told her ‒
              told her to talk to the manager and the GM. I also told her to
              file a lawsuit based on something that was ‒ that’s not there is
              wrong. She also said she was arrested for possession of a
              pound of Mary Jane.

The trial court found Martin’s testimony to be credible.

       In late January or early February ‒ neither was sure of the date ‒ plaintiff and
Rogers met at a hotel and had sex. Plaintiff adamantly denied that it was a money-for-
sex exchange. She testified, “[t]he money he gave me was a gift. Since he cut my hours
and as a result of him cutting my hours, like I said before, he would help me get caught
up on my expenses.” On cross-examination, plaintiff admitted that she testified in her
deposition as follows:

              Q. Okay. Page 116. I’d like you to look, ma’am, here at line
              5. Question: “You said he gave you money. Did he give you
              some money as a gift?” Answer: “I mean, he gave me some
                                           - 10 -
              money.” “How much money did he give you?” “He gave
              me, I believe it was, like, 400. And then he told me that one
              day when I come to work, don’t clock out, that he would pay
              me on the clock.” Is that what he told you?

              A. Yes, sir.

                                    *      *          *

              Q. Question: “Did he pay you to have sex with him?” Why
              don’t you read the Court your answer, please?

              A. I mean, he gave me some cash. He paid me.

              Q. You said, “Yes, he paid me.” Correct?

              A. I mean, it says, “Yes, he paid me.” But from my
              understanding, he did not give me any cash for sex.

        Rogers, for his part, testified that plaintiff regularly called him on his cell phone
when neither of them was at work, they talked frequently, and they agreed on a price
before they went to the hotel. Although plaintiff wanted $400 and they agreed on that
amount, he only had $260 on the date they met, so they settled on that price. Rogers
testified, “I never sexually harassed her. I paid her for her services, and that was it.” The
trial court found as follows:

              [Plaintiff] testified she did not have sex with William Rogers
              for money in a motel. I understand what you mean by that,
              saying she wasn’t being a prostitute, but she was ‒ had sex
              because she needed the money. I mean, I get the distinction
              there in her mind, I get what she is talking about, but it leads
              me to the conclusion that it was not unwelcomed sexual
              contact, it was welcomed.

The trial court also found it credible that plaintiff, “after having sex with William Rogers
. . . at the hotel, motel, that she felt disgusted with herself for having done that,” stating,
“I do think that following that encounter with a man the age of her father who’s way
overweight, not clean, smelled, that she was disgusted.”

      Plaintiff testified that she felt compelled to give in to Rogers’ sexual advances
because he threatened to cut her working hours, and in fact did so when she refused him.
                                             - 11 -
Rogers denied ever manipulating her hours, either as a threat or a reward. The parties
presented detailed records of the hours plaintiff worked at the TSU Wendy’s, from late
September 2013 until the week ending August 10, 2014. Her hours fluctuated somewhat
each week, but mostly stayed between 25 and 35 hours per week. They dropped for two
weeks in mid-December. For the week ending December 15, 2013, she worked 14.93
hours, and the week ending December 22, only 5.63 hours. Many of the Wendy’s
employees testified that after TSU’s final exam period ended and Christmas break began,
it was a very slow time for the restaurant and everyone had their hours cut for that reason.
This potentially explains the drop in hours for the second week, because TSU’s
commencement was on December 14. There was no explanation provided for why
plaintiff got fewer hours for the week ending December 15. However, in plaintiff’s
answer to interrogatories asking her to list each alleged instance of retaliation by having
hours cut, she did not include the dates in December in her response, citing only her drop
in hours that occurred in mid-2014. Employer cross-examined her on this omission,
asking, “could you show the Court if there is anywhere in your interrogatory responses
where you allege that your hours were cut in December of 2014?” [sic: 2013] Plaintiff’s
counsel replied, “we will stipulate there is not.” The record further shows that plaintiff
also worked at Arby’s from September 2013 until April 2014, and that she worked 30.28
hours at Arby’s during the week ending December 22, 2013.

        Plaintiff’s hours generally returned to normal, both before and after the hotel
incident, until the end of June 2014. They declined significantly in July; she worked
around seven hours per week that month. Plaintiff testified that Rogers cut her hours in
retaliation for her refusal to have sex with him again. Numerous other witnesses,
including co-workers Owens and Robinson, assistant managers Martin and Braithwaite,
and Rogers, testified that the reason plaintiff got fewer hours was that she was then
working a second job in Smyrna that required her to leave the TSU Wendy’s earlier than
before. Additionally, it was undisputed that plaintiff was also picking up hours on an
“as-needed” basis from another Wendy’s store located on Charlotte Pike in Nashville.
Robinson testified as follows:

              Q. What did ‒ and what did she say to you about the second
              job?

              A. . . . I asked her, well, why don’t I see you because I had
              just came back from ‒ from school, just came back to
              Wendy’s. She said, well, I have another job so I’m not there
              as much.

                                   *      *         *

                                           - 12 -
              Q. Did [plaintiff] ever tell you why she thought her hours
              were being reduced at the TSU Wendy’s?

              A. I asked her why I don’t work with her a lot, and she told
              me that she had a second job.

       The trial court found as follows regarding plaintiff’s work hours:

              I find that her hours were cut at TSU Wendy’s because she
              had a second job and she had to get out of there early in order
              to get to Smyrna to be involved in her second job. It had
              nothing to do with failure to give sexual favors. It had
              everything to do with the fact she had to be at another job.

This conclusion was based largely on the trial court’s observation of the various
witnesses and assessment of their credibility. The evidence does not preponderate
against the trial court’s findings of fact supporting its ultimate conclusion on this point.

        Plaintiff recorded her interaction with Rogers on July 27, 2014, which happened
before the restaurant opened. As already noted, Rogers asks plaintiff to go to the ladies’
rest room and strip for him for $40. Plaintiff testified, “he gave me nothing, and I did not
strip for him.” Rogers testified, “I told her, ‘as a matter of fact, you can strip for me right
now for $40,” and she said, ‘okay,’ ” and “I ended up giving her $20.” The trial court
correctly noted that it sounds like plaintiff agreed with the suggestion on the recording.
Plaintiff did not deny her agreement on cross-examination. She testified:

              Q. And the truth is you agreed to go to the bathroom with him
              for $40 because you were trying to trap him for a lawsuit; is
              that right?

              A. No. He trapped himself. He knew for a fact he wasn’t
              supposed to fraternize or do anything with your coworkers,
              and he did not once, twice.

              Q. Well, explain to the Court then why you said you would
              go to the bathroom and strip for him for $40, what was in
              your mind?

              A. It would ‒ it wouldn’t have been trapping him. I mean,
              this is a lawsuit. You need evidence. You need facts. You
              need facts. If I would have came to my lawyer with nothing,
                                             - 13 -
             it would have been my case against his; he say versus she say.
             Don’t you believe you need the facts to prove the case?

Rogers testified to the effect that plaintiff set him up to get the recording, stating in
pertinent part:

             Q. The conduct between you and [plaintiff], that you weren’t
             surprised by the tape recording?

             A. I mean, I was surprised that she made the tape recording,
             yes.

             Q. But the fact that you all were talking in that manner, was
             not ‒

             A. No. I was on the phone with her all the time.

             Q. That wasn’t inconsistent with the way you talked in the
             store?

             A. No. Because we never really ‒ she never really worked in
             the morning time like that to even get ‒ to even play with her
             like that. She come in at 10 o’clock. It was already four
             people there when she get there.

             Q. When you were alone in the store with her ‒

             A. Right.

             Q. ‒ was that consistent with the way you talked?

             A. No, sir. Just that day.

                                  *       *        *

             Q. Didn’t you earlier say that that tape recording was
             consistent with the way y’all talked ‒

             A. Yes, on the phone and stuff, not ‒ not in the store.



                                          - 14 -
                 Q. Okay. So in the store ‒ you never used any language like
                 that except that one day?

                 A. That I ‒ that I recall, yes, sir. Because she came in talking
                 about sex and stuff. Then she started to record. She had been
                 there over an hour when she started recording. An hour and a
                 half she just started playing and talking nasty, and then she
                 hit the recorder.

(Emphasis added.)

       Regarding what did or did not happen in the ladies’ rest room, the trial court
found, “I can’t decide who is telling the truth on that” and “the evidence is equally
balanced on that issue.” As a consequent of its indecision on this point, the court held
that “plaintiff has failed to carry her burden of proof on that.”

       Ultimately, as already stated, the trial court found that plaintiff did not prove that
the sexual interaction between her and Rogers was unwanted.1 This decision was
inescapably dependent on the trial court’s observation and assessment of the demeanor
and credibility of the various witnesses. The trial court made numerous specific findings
of credibility. It is a fundamental principle of appellate jurisprudence that “[w]hen a trial
court has seen and heard witnesses, especially where issues of credibility and weight of
oral testimony are involved, considerable deference must be accorded to the trial court’s
factual findings.” Collins v. Howmet Corp., 970 S.W.2d 941, 943 (Tenn. 1998). Put
another way, “trial courts are best situated to evaluate witness credibility, and appellate
courts will not re-evaluate a trial judge’s assessment of witness credibility absent clear
and convincing evidence to the contrary.” In re Joseph F., 492 S.W.3d 690, 702 (Tenn.
Ct. App. 2016), quoting Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999)
(internal quotation marks omitted). We affirm the trial court’s ruling that plaintiff failed
to prove that Rogers harassed her, because the interaction between the two was not
unwelcomed.



        1
           Plaintiff asserts, in an argument raised for the first time in her appellate reply brief, that the trial
court did not apply the correct legal standard because it referred at times to an issue of whether the
conduct was “consensual,” as opposed to “wanted” or “welcomed.” The trial court did use the term
“consensual” occasionally in the course of delivering its long oral opinion, but often in the context of
what Rogers testified to, or how he described what happened. Plaintiff argues that the trial court’s ruling
makes it difficult “to know whether [it] understood the correct standard to apply for determining sexual
harassment, which is based upon welcome and unwelcome behavior.” But in delivering its opinion, the
trial court expressly stated, no fewer than seven separate times, its finding that the conduct was either
“welcomed” or “not unwelcomed.” We find this argument is without merit.
                                                     - 15 -
                                           C.

       An employer is strictly liable for sexual harassment perpetrated by its managerial
employee under respondeat superior if a tangible employment action has been taken
against the plaintiff. Parker, 2 S.W.3d at 176; Pa. State Police v. Suders, 542 U.S. 129,
137 (2004). In Allen v. McPhee, 240 S.W.3d at 812-13, the Tennessee Supreme Court
restated and explained the concept of “tangible employment action,” and the affirmative
defense available if such an action has not been taken, as follows:

             The United States Supreme Court developed the modern
             framework for determining an employer’s liability for hostile
             work environment sexual harassment in the companion cases
             of Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct.
             2275, 141 L.Ed.2d 662 (1998), and Burlington Industries,
             Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d
             633 (1998). Those cases held that “[a]n employer is subject
             to vicarious liability to a victimized employee for an
             actionable hostile environment created by a supervisor with
             immediate (or successively higher) authority over the
             employee.” Faragher, 524 U.S. at 807, 118 S.Ct. 2275;
             Ellerth, 524 U.S. at 765, 118 S.Ct. 2257. There is, however,
             an important exception to the rule of vicarious liability:

                    When no tangible employment action is taken, a
                    defending employer may raise an affirmative
                    defense to liability or damages, subject to proof
                    by a preponderance of the evidence. . . . The
                    defense comprises two necessary elements: (a)
                    that the employer exercised reasonable care to
                    prevent and correct promptly any sexually
                    harassing behavior, and (b) that the plaintiff
                    employee unreasonably failed to take advantage
                    of any preventive or corrective opportunities
                    provided by the employer or to avoid harm
                    otherwise.

             Faragher, 524 U.S. at 807, 118 S.Ct. 2275; Ellerth, 524 U.S.
             at 765, 118 S.Ct. 2257. In accordance with the policy of
             maintaining the continuity of the THRA and Title VII, we
             have since adopted the vicarious liability rule and the
             Faragher/Ellerth defense. Parker, 2 S.W.3d at 176. When
                                          - 16 -
              the harassing supervisor has not taken or instigated a tangible
              employment action against the employee, such as a
              termination, failure to promote, demotion, or undesirable
              reassignment, the employer may raise an affirmative defense
              to liability. Id.; Faragher, 524 U.S. at 808, 118 S.Ct. 2275;
              Ellerth, 524 U.S. at 765–66, 118 S.Ct. 2257. The affirmative
              defense requires the employer to establish: 1) that it took
              reasonable measures to prevent and correct discriminatory
              conduct; and 2) that the employee unreasonably failed to take
              advantage of these preventive and corrective measures.

        In the case at bar, plaintiff alleged that Rogers instigated a tangible employment
action against her by threatening to cut her hours, and carrying out that threat. As already
discussed in this opinion, the trial court found the facts on this point to be adverse to
plaintiff. On this point, plaintiff cited and relied upon the following proposition
established in the case of Jin v. Metro. Life Ins. Co., 310 F.3d 84, 94 (2d Cir. 2002):

              Requiring an employee to engage in unwanted sex acts is one
              of the most pernicious and oppressive forms of sexual
              harassment that can occur in the workplace. The Supreme
              Court has labeled such conduct “appalling” and “especially
              egregious.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 22,
              114 S.Ct. 367, 126 L.Ed.2d 295 (1993). It is hardly
              surprising that this type of conduct ‒ a classic quid pro quo
              for which courts have traditionally held employers liable ‒
              fits squarely within the definition of “tangible employment
              action” that the Supreme Court announced in Faragher and
              Ellerth.

(Emphasis added). Plaintiff also relies on Holly D. v. Cal. Instit. of Tech., 339 F.3d
1158, 1173 (9th Cir. 2003), wherein the Court stated:

              Like the Third Circuit, we fully agree with Jin. We join the
              Second Circuit in holding that, in addition to those acts
              explicitly mentioned in Ellerth, a “tangible employment
              action” occurs when a supervisor extorts sexual favors from
              an employee by conditioning her continued employment on
              her participation in unwelcome sexual acts.        Thus, a
              Faragher/Ellerth affirmative defense is not available to the
              employer, whether the supervisor who abuses his
              supervisorial authority succeeds in coercing an employee to
                                           - 17 -
              engage in sexual acts by threats of discharge, or fails in his
              efforts to coerce the employee and then actually discharges
              her on account of her refusal to submit to his demands. Either
              way, the abuse of supervisorial authority results in a “tangible
              employment action” that causes significant injury to the
              employee involved.

(Emphasis added).

       In a pretrial ruling on employer’s motion in limine, the trial court stated it
“interprets this motion as a request for the Court to reject the holding set forth in Jin” and
granted the motion. Upon a request for reconsideration of this ruling, the trial court said,
“I know there’s a split in the circuits on that issue.” As plaintiff correctly points out,
there is no split of authority among the circuits of the U.S. Court of Appeals. At least
three federal circuits follow Jin. Jin, 310 F.3d at 94; Holly D., 339 F.3d at 1171-73;
Suders v. Easton, 325 F.3d 432, 458-59 (3rd Cir. 2003), reversed on other grounds by
Pa. State Police, 542 U.S. 129 (2004). Some federal district courts have criticized and
declined to follow Jin. See, e.g., Santiero v. Denny’s Restaurant Store, 786 F.Supp.2d
1228, 1235 (S.D. Tex. 2011); Speaks v. City of Lakeland, 315 F.Supp.2d 1217, 1225-26
(M.D. Fla. 2004); Doe v. Lansal, Inc., No. 08 CV 5983, 2009 WL 5166224, at *4-6
(N.D. Ill. 2009). In this case, the trial court stated that it “adopts the holding and
reasoning in the case of Jane Doe v. Lansal, Inc.”

       On appeal, plaintiff argues that the trial court erred as a matter of law in this
ruling, and urges that we adopt Jin and Holly D. as applicable in Tennessee. This
question, however, is moot in this case, given the trial court’s factual findings. Even
assuming that Jin applies in Tennessee, which we do not decide, plaintiff could not
prevail, because she could not establish the factual predicates to liability as discussed in
Jin and Holly D. In other words, she was unable to show that Rogers “require[ed] [her]
to engage in unwanted sex acts,” Jin, 310 F.3d at 94, or that he “condition[ed] her
continued employment on her participation in unwelcome sexual acts.” Holly D., 339
F.3d at 1173. Under these circumstances, we decline to issue an advisory opinion on
whether Jin and Holly D. should be adopted and followed in Tennessee. See State v.
Brown & Williamson Tobacco Corp. 18 S.W.3d 186, 192 (Tenn. 2000) (observing “the
established rule that courts are not to render advisory opinions”).

       In its alternative ruling, the trial court held that employer met its burden to
establish its affirmative defense by proving that it “exercised reasonable care to prevent
and correct promptly any sexually harassing behavior, and . . . that the plaintiff employee
unreasonably failed to take advantage of any preventive or corrective opportunities
provided by the employer or to avoid harm otherwise.” Allen, 240 S.W.3d at 813.
                                            - 18 -
Because plaintiff failed to establish her case of sexual harassment by showing the alleged
conduct was unwanted, there is no liability ‒ direct or vicarious ‒ and therefore the
affirmative defense issue is largely moot as well. As an alternative holding, however, we
affirm the trial court’s ruling that employer established its affirmative defense, and will
briefly summarize the evidence supporting it.

       Employer provided extensive evidence of its sexual harassment policy and how it
was communicated to its employees and enforced. It is contained in the employee
handbook, which is given to all new employees. Although plaintiff testified she had
never seen it, she signed a form on the back page of a handbook acknowledging that she
received a copy of the employee handbook and “reviewed the policies and procedures
contained therein.” There were several printed posters outlining the policy forbidding
sexual harassment and the means for employees to report it at the TSU Wendy’s
restaurant. The sexual harassment policy, and the means for reporting violations of it,
were readily available to plaintiff. The testimony of the three executive-level managers,
who testified that the first time they became aware of plaintiff’s allegation was their
receipt of the notice of her lawsuit, is undisputed. District manager Bobby Moss testified
that he was in the store several times a week, that he knew plaintiff and had spoken with
her. He testified that he was often available to hear potential complaints of sexual
harassment. The trial court found that there were “many opportunities to report sexual
harassment if it was going on.” The evidence does not preponderate against this finding.
Although plaintiff testified that she did not know that Moss was the district manager —
and, hence, above general manager Rogers — her testimony was contradicted by that of
numerous co-workers, and her own deposition testimony. The trial court found, “I think
the company followed their anti-sexual harassment policy as best they could with no
report being made.”

        Employer initiated a prompt and serious investigation almost immediately after it
learned of plaintiff’s complaint. The employee interviews yielded no corroborating
evidence suggesting that any other employee had witnessed or was aware of any
harassing behavior by Rogers. When Rogers came forward and told them his version of
what happened in the ladies’ rest room, employer effectively ended his employment on
the spot, taking his keys and telling him not to return in an official capacity. When
plaintiff requested a transfer to the Charlotte Pike Wendy’s, employer complied with the
request, and plaintiff continued to work there until her voluntary resignation. In
summary, the evidence does not preponderate against the trial court’s alternative ruling
that employer established its affirmative defense.




                                           - 19 -
                                            D.

        The trial court allowed director of operations Charles Pastors to review and read
some of the other employee’s statements made during the investigatory interview. These
statements, made in the course of direct examination, were generally unfavorable to
plaintiff and/or her position in the harassment lawsuit. Plaintiff objected, and insists on
appeal that the court erred in allowing these hearsay statements into evidence. Employer
does not dispute that the trial court erred in admitting the challenged testimony. It argues
that it was harmless error, citing our observation in Citadel Investments, Inc. v. White
Fox, Inc., No. M2003-00741-COA-R3-CV, 2005 WL 1183084, at *11 (Tenn. Ct. App.,
filed May 17, 2005):

              The erroneous exclusion, or admission, of evidence in a
              bench trial does not, standing alone, justify a reversal of the
              trial court’s judgment. Whether or not a trial court’s decision
              on the exclusion or admission of evidence was erroneous is
              only one of the questions to be determined on appeal. An
              essential inquiry is whether an error requires reversal.
              Blackburn v. Murphy, 737 S.W .2d 529, 533 (Tenn. 1987);
              White v. Vanderbilt University, 21 S.W.3d 215, 223 (Tenn.
              Ct. App. 1999). A judgment should be set aside only if, after
              considering the entire record, an error involving a substantial
              right more probably than not affected the outcome of the trial
              or would result in prejudice to the judicial process. Tenn. R.
              App. P. 36(b); Blackburn, 737 S.W.2d at 533-34; Scott v.
              Jones Bros. Constr., 960 S.W.2d 589, 593 (Tenn. Ct. App.
              1997); Pankow v. Mitchell, 737 S.W.2d 293, 297 (Tenn. Ct.
              App. 1987). The burden to show prejudice, that the excluded
              or admitted evidence affected the judgment, is on the
              complaining party. Coakley v. Daniels, 840 S .W.2d 367,
              371 (Tenn. Ct. App. 1992); Bishop v. R.E.B. Equipment
              Serv., Inc., 735 S.W.2d 449, 451 (Tenn. Ct. App. 1987).

        Employer relies upon the principle that “[i]f the reviewing court determines . . .
that the fact the inadmissible evidence was submitted to establish is clearly established by
other evidence in the case that is competent and properly admitted, the court ordinarily
should hold the error harmless.” In re Estate of Smallman, 398 S.W.3d 134, 153 (Tenn.
2013). Employer argues that “[e]ven assuming all of the evidence addressed by
[plaintiff] was admitted erroneously, the facts the evidence was submitted to establish
were clearly established by properly admitted evidence.” This is mostly true. Pastors
was allowed to relate statements made by assistant manager Martin and co-worker
                                           - 20 -
Robinson. Both of these witnesses testified at trial. Their testimony included the
statements at issue, and they were subject to cross-examination on these statements.
Pastors read only a single statement of a co-worker who did not testify, Yolanda Lewis,
who told the interviewers that plaintiff “had a mouth on her, and that she would come
banging on the door and wanting her check and yelling at Ms. [Martin] to open the door
and cussing at her and telling her to give her her goddamn check.” This single statement,
while erroneously admitted, is hardly relevant or significant in the overall context of
plaintiff’s case. The trial court mentioned it in a single sentence in the course of
delivering its 185-page opinion, but did not attach any significance or finding of
credibility to it. We do not find that this error more probably than not affected the
outcome of the bench trial, or resulted in prejudice to the judicial process.

      The trial court also made a passing reference to Robinson’s statement, reiterated
by Pastors, that Robinson had heard plaintiff say she “sold her body for cash.” As
previously stated, Robinson recanted that statement on cross-examination. In reviewing
Robinson’s testimony, the trial court stated,

              She met plaintiff when she was in the eighth grade.
              [Plaintiff] bragged to Ms. Robinson about selling her body for
              cash while they were working on the line at TSU Wendy’s.
              Ms. Robinson overheard [plaintiff] telling another employee
              that statement. And I find all that to be credible testimony.

While we have no quarrel with the trial court’s assessment of Robinson’s credibility, the
evidence preponderates against a finding that Robinson heard plaintiff saying she sold her
body for cash, because Robinson herself recanted it, clarifying that it was not as much
what plaintiff said as “the way she said it.” Setting aside Robinson’s recanted statement,
the evidence viewed in its entirety does not preponderate against the trial court’s findings
and judgment.

                                             E.

       Plaintiff argues that 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. As
regards these issues, plaintiff states in her brief:

              It is Plaintiff’s position that the issues raised in this section
              are error, although for purposes of this appeal they are, in all
              likelihood, harmless error. In the event of remand, however,
                                            - 21 -
              Plaintiff would appreciate this Court’s guidance for a
              subsequent trial court hearing.

Regarding the previous lawsuit, evidence was presented to the court notwithstanding its
ruling on the motion in limine. The trial court stated the following:

              Trial Exhibit 33 is the complaint in the [prior] case versus
              B.F. Nashville that has now been marked as a substantive
              exhibit, and I have looked at it and given it the consideration
              that I’ve stated. It’s the fact that another complaint occurred
              of sexual harassment, and only the second lawsuit for sexual
              harassment in the 16 plus years that Wendy’s B.F. Nashville
              has been in existence, and I find that to be a very good record
              on lack of sexual harassment in the workplace. And, again, it
              . . . shows their sexual harassment policy is working.

Plaintiff insisted on presenting evidence of the prior lawsuit, and employer responded
with undisputed testimony that it, a company owning and operating 62 Wendy’s
restaurants and employing between 1,500 and 1,600 people at the time of trial, had only
one other sexual harassment lawsuit filed against it in sixteen years. The fact that the
trial court stated that the prior complaint “has now been marked as a substantive exhibit”
suggests that the trial court may have in effect reversed itself on the ruling on the motion
in limine plaintiff now argues is error. If there was error in the court’s handling of this
issue, it was harmless.

       Similarly to the prior lawsuit issue, the issue of the admissibility and effect of
manager Rogers’ prior romantic/sexual relationship with a subordinate can fairly be said
to have been tried by implied consent. The trial court allowed and considered extensive
evidence of this relationship. Rogers had a consensual relationship with a subordinate
employee that resulted in the two parenting a child. The trial court credited evidence
presented by employer that it was unaware of Rogers’ violation of its anti-fraternization
policy until after one or both of the employees no longer worked for employer. We find
no error in the trial court’s handling of this issue.

       Employer argues that this appeal is frivolous. We do not find it to be a frivolous
appeal.




                                           - 22 -
                                          V.

       The judgment of the trial court is affirmed. Costs on appeal are assessed to the
appellant, Tysheka Barnett. The case is remanded for collection of costs below, in
accordance with applicable law.


                                                  _______________________________
                                                  CHARLES D. SUSANO, JR., JUDGE




                                         - 23 -
