The opinion
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.
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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
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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
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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.
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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
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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.
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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
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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
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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.
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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.
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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
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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
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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.
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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
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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
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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.