Sex Discrimination - Manager Spying on Employee
What do you get when you cross a peeping tom manager with a persistent rash? If you're Jill Cottrill and Mary Combs, you get thrown unceremoniously out of court, that's what.
Unfortunately, Cottrill and Combs had to sue in federal court in Missouri. It's unlikely that they would have fared so poorly if they had sued in New Jersey, but their story is instructive nonetheless.
The case is Cottrill v. MFA, Inc. It was decided by the United States Court of Appeals for the 8th Circuit on April 7, 2006. Over a blunt and well-reasoned dissent, the court upheld the trial court's entry of summary judgment in favor of the defendant employer.
Jill Cottrill was employed by MFA as a bookkeeper and Mary Combs as a part-time bookkeeper. They were supervised by Scott Adkins, the manager of MFA's retail facility in Albany, Missouri. The facility had one women's restroom, which adjoined a room that Adkins used as his personal "breakroom." Adkins remodeled the restroom in 1997 and added some non-standard equipment to enable him to view Cottrill while she used the restroom: a two-way mirror and a peephole that went through restroom wall into his breakroom. On the breakroom side Adkins hid the peephole with a bookself and paneling.
When Adkins saw Cottrill go to the restroom, he would retire to the breakroom to spy on her. This happened about two to three times per day over a period of four years, from 1997 to 2001. Adkins's deceptions worked: Cottrill never realized that she was being observed.
From about 2000 to 2002 Cottrill also noticed a sticky substance on the toilet seat a number of times. She suffered rashes on her legs, buttocks, ankles, chest and arms. Initially baffled by what was causing the rashes, she came to believe that they were caused by the sticky substance.
Combs became suspicious of Adkins in January, 2002 because he frequently followed Cottrill to the rest room. She thought they were having an affair, but discarded that theory after several months when it became obvious that Cottrill did not know that she was being followed. Although suspicious, Combs did not report the behavior to anyone at MFA. In October, 2001, however, she inspected the breakroom and discovered the peephole. She notified Cottrill and MFA's management.
MFA's managers thought that they could not fire Adkins if they did not catch him in the act, so they decided to set up a trap with a hidden camera to record at the peephole and use Cottrill as bait. In fairness, they involved Cottrill in the plan and told her that she could wear a long shirt to maintain some level of modesty while Adkins would be observing her in the restroom. The trap was sprung on October 21, and the hidden camera recorded Adkins observing Cottrill in the restroom four times that day. Adkins was fired and the wall was rebuilt to remove the observation devices.
A short time later an MFA manager explored the breakroom and found hidden there a plastic bag containing a stick of clear gelatinous material (later found to be cornstarch), gloves, and a plastic bag containing a deteriorated substance that an expert identified to a 99% certainty as poison ivy leaves.
Cottrill and Combs sued MFA for gender discrimination for maintaining a hostile work environment. Sounds like a pretty simple case, right? According to the courts, wrong.
The trial court dismissed the case on motion, and the appeals court affirmed.
We first consider Cottrill's hostile work environment claim. Cottrill was not aware of the peeping, stating in her depositions that she did not know that Adkins was viewing her. Because she did not subjectively perceive the peeping, Cottrill may not rely on the peeping to establish that her work environment was hostile.
That's a curious conclusion, but the court outdid itself by finding that
the contamination of the toilet seat and the actions of MFA [in using Cottrill as bait] during the investigation were not so objectively hostile as to poison Cottrill's work environment.The court concluded that
Cottrill has not established a question of material fact as to whether the alleged harassment was so severe and pervasive as to constitute a hostile work environment . . . in violation of Title VII. Although it called Adkins's conduct "reprehensible," it ruled in favor of MFA, and did so in a manner that deprived the plaintiffs of the opportunity to have a jury hear the evidence.
A curious ending to the story, but there's more. Judge Murphy filed a dissenting opinion, and while acknowledging facts in the record that weighed against plaintiffs, explicitly stated that
the majority overlooks evidence in the record from which a fact finder could determine that Jill Cottrill experienced a hostile work environment, including the role she was asked to play in the scenario devised by management to catch Scott Adkins in the act of spying and other acts by managers.To accuse one's judicial colleagues of "overlooking" facts favorable to a plaintiff who is attempting to oppose a summary judgment motion is rather strong stuff.
In any event, in this case the dissent got it right.