“O, that mine enemy would write a book” is an oft paraphrased quote from the Bible’s book of Job.[1] Most biblical scholars believe that Job was asking, if not begging, for his accuser to write down on paper the allegations made against him so that they would be specific enough that he could formulate a response or defense.[2] So what does the book of Job have to do with employees on the job? There is a growing trend where employees are using their smartphones to capture workplace happenings. When this occurs, there is no need for the accuser to write a book, as Job pleaded, because the evidence, quite literally, speaks for itself. When an employee captures workplace misconduct on an audio or video recording, however, he or she has a duty to inform the employer about it and may not keep quiet about the evidence in hopes of improving his or her chances during litigation. We saw this tactic in a case we recently handled[3] and the Tennessee Court of Appeals had an opportunity to address it in Bazemore v. Performance Food Group Inc.,[4] the case on which this article is focused. Chances are, these types of workplace recordings will become even more commonplace.

In the case at hand, Ms. Bazemore worked for Performance Food Group (PFG), a food distributor, as an area sales manager in the Chattanooga, Tennessee, market. Her claims arise out of an alleged sex-based hostile work environment created by Barry Pearson, also a PFG area sales manager.[5]

Harassment: Caught on Tape

Bazemore’s sexual harassment allegations arise out of two different interactions with Pearson in 2012. Bazemore alleged that on Sept. 10, 2012, Pearson made inappropriate sexual comments and directed multiple lewd comments toward her. Pearson’s comments referenced Bazemore’s backside and his own genital area.[6] Pearson also allegedly grabbed and squeezed Bazemore’s buttocks during this encounter. While Pearson was making these inappropriate comments, Bazemore was able to capture part of the encounter on her cell phone.

The second incident occurred on Oct. 3, 2012. Pearson showed Bazemore a picture of a man’s testicles[7] and then proceeded to make inappropriate sexual comments, and again slapped Bazemore on the buttocks.[8]  Bazemore was also able to record this interaction with Pearson on her cell phone. However, Bazemore did not immediately report either of  Pearson’s instances of misconduct to PFG.[9]

Bazemore Finally Reports the Harassment

Bazemore did not attempt to notify PFG of Pearson’s behavior until Oct. 8, 2012, when she left a voicemail for PFG Human Resources Director Denise Pollock.[10] The voicemail did not indicate why Bazemore was calling or indicate anything about sexual harassment. Pollock and Bazemore were not able to discuss the matter until Oct. 18, 2012. The next day, Bazemore sent Pollock, per her request, a detailed write-up of her interactions with Pearson.[11] PFG began its investigation immediately. Importantly, nowhere in Bazemore’s written account or her oral complaints did she inform PFG that she had audio recordings of Pearson’s inappropriate statements.

PFG’s Investigation

On Oct. 22, 2012, Pollock and Mr. Davis, the area supervisor, met with Pearson to discuss Bazemore’s allegations of inappropriate conduct. He admitted that he had shown Bazemore a picture of a man’s testicles, but maintained that she had requested to see the picture.[1]2 He denied the rest of Bazemore’s allegations against him.

PFG’s Remedial Action

On Oct. 25, 2012, Bazemore met with Pollock, Davis and PFG’s Vice President of Sales Doug Burley, to discuss the results of the investigation. Bazemore was told that Pearson would no longer have one-on-one contact with her, that his access to the Chattanooga office had been restricted, and that Pearson had been issued a final written warning. However, she was also told that Pearson disputed the allegations levied against him. Even though she knew that the recordings would substantiate her version of events, she still neglected to inform PFG about them. Disappointed with PFG’s handling of the Pearson situation, Bazemore ultimately submitted her letter of resignation on Jan. 15, 2013.

On Sept. 5, 2013, Bazemore filed her lawsuit alleging a constructive discharge resulting from a sex-based hostile work environment in violation of the Tennessee Human Rights Act, among other claims.[13] It was not until the discovery phase of the litigation that PFG finally became aware of the audio recordings. Pearson was terminated shortly thereafter.[14] PFG filed a motion for summary judgment as to the hostile work environment claim, which was granted. The trial court found that PFG took reasonable steps to prevent workplace sexual harassment and that PFG’s efforts to discipline Pearson were objectively reasonable.[15]

On appeal, the issue was whether Bazemore had shown that PFG “knowingly permitted conditions of discrimination in [her] employment [that] were so intolerable that a reasonable person would resign her employment.”[16] In affirming the trial court’s grant of summary judgment, the Court of Appeals time and again referenced Bazemore’s failure to notify PFG of the audio recordings.

The court explained that if Bazemore did not provide the audio recordings to PFG, then such evidence cannot be used against the company where the investigation had yielded the “uncorroborated testimony of two opposing parties.”[17] Specifically, the court commented, “PFG cannot be faulted for failing to analyze incriminating evidence that was never made available to it prior to Bazemore’s decision to leave the company, incriminating evidence which was solely in the possession and under the control of Ms. Bazemore.”[18]

The court was also troubled by the fact that Bazemore waited “nearly one month after the first incident” before attempting to contact the PFG Human Resources Department. And when she did call, her voicemails did not indicate the urgent nature of the matter.[19] This delay directly conflicted with the anti-harassment policy PFG had in place at the time, which required employees to inform PFG “immediately” of any conduct believed to constitute harassment.[20]

Bazemore’s failure to be completely forthcoming with PFG doomed her hostile work environment claim, especially in light of the responsive steps taken by PFG.

Though Bazemore failed to follow the prescribed reporting procedures and decided to withhold important matters regarding the alleged harassment, PFG nonetheless had a framework in place to eradicate sexual harassment from the workplace through its anti-harassment policy, training of employees, annual recertification of employees and prompt investigation when made aware of Bazemore’s claims.[21]

The court ultimately held that PFG’s response to the allegations of sexual harassment was reasonable given the information it had available to it.

For employers, Bazemore is a strong reminder that the best defense in an employment case starts with appropriate anti-harassment policies and prompt, effective investigations. For employees, it’s a reminder that if you’ve got evidence that backs up your claim, follow the policies in place and show your hand early — don’t hold your cards close to the vest in hopes of framing a better lawsuit later on.

Notes

1. Job 31:35.
2. Gill, John, “Commentary on Job 31:35,” “The New John Gill Exposition of the Entire Bible,” www.studylight.org/commentaries/geb/job.31.html.1999.
3. McKinney v. G4S Gov’t Solutions Inc., No. 7:14-cv-00101, 2016 U.S. Dist. LEXIS 43049 (W.D. Va. Mar. 31, 2016) (granting summary judgment to employer on hostile work environment, retaliation and intentional infliction of emotional distress claims) (“Although plaintiff describes G4S’s discussion of the recordings as a shameful accusation that McKinney was manufacturing a lawsuit, the court concludes that his recording of conversations to support his lawsuit is relevant — and important — evidence about whether McKinney’s failure to report harassment was reasonable. That is, McKinney stated that he felt harassed beginning as early as the Fall of 2012, and apparently harassed severely enough to believe he might someday file a lawsuit, but he never reported that harassment to give G4S an opportunity to address it.”).
4. 478 S.W.3d 628 (Tenn. Ct. App. 2015).
5. “As a result of the unwanted sexual harassment, Bazemore also alleged constructive discharge, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligent supervision and retention.” Id. at 631. For purposes of this article, we focus only on the sex-based hostile work environment claim.
6. Id. at 631.
7. Although Pearson initially admitted to  Bazemore that it was his anatomy featured in the picture, he apparently later disputed this.
8. Id. at 631-32.
9. Id. at 632.
10. Id.
11. Id.
12. Id. at 633.
13. Id. at 634
14. Id. at 638.
15. Id. at 634.
16. Id. at 636 (citing Frye v. St. Thomas Health Servs., 227 S.W.3d 595, 611 (Tenn. Ct. App. 2007).
17. Id. at 637.
18. Id.
19. Id.
20. Id.
21. Id.

EDWARD G. PHILLIPS is a lawyer with Kramer Rayson LLP in Knoxville, where his primary areas of practice are labor and employment law. He graduated with honors from East Tennessee State University and received his law degree from the University of Tennessee College of Law in 1978 with honors, and as a member of The Order of the Coif. He is a former chair of the Tennessee Bar Association’s Labor and Employment Law Section.

BRANDON L. MORROW is an associate with Kramer Rayson LLP in Knoxville where his primary areas of practice are labor and employment, and litigation. He earned a bachelor’s degree from the University of Tennessee and a law degree from UT College of Law in 2012.