Cottrill v. Mfa, Inc.

Citation443 F.3d 629
Decision Date07 April 2006
Docket NumberNo. 05-1748.,05-1748.
PartiesJill COTTRILL; Mary Combs, Appellants, v. MFA, INCORPORATED, doing business as MFA Agri-Services, Inc., a Missouri Corporation, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

James A. Montee, argued, St. Joseph, MO (Susan K. Montee, St. Joseph, MO, on the brief), for appellant.

Erin E. Packel, argued, Kansas City, MO (John J. Yates and Kara M. Dorssom, Kansas City, on the brief), for appellee.

Before MURPHY, BOWMAN and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Jill Cottrill ("Cottrill") and Mary Combs ("Combs") appeal the district court's1 order granting summary judgment to MFA, Incorporated, doing business as MFA Agri-Services, Inc. ("MFA"). Appellants brought suit against MFA alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. For the reasons discussed below, we affirm the grant of summary judgment to MFA.

I. BACKGROUND

MFA is a regional agriculture cooperative which employs 1900 people, operates 150 retail facilities and is headquartered in Columbia, Missouri. Cottrill and Combs worked for MFA in its Albany, Missouri, retail facility. Cottrill was hired by MFA as a bookkeeper in 1987 and Combs as a part-time bookkeeper in July of 2001. The Albany facility contained one women's restroom, consisting of a single room with a sink, toilet and mirror. The manager of the facility and the appellants' supervisor, Scott Adkins, remodeled this restroom in 1997. During the remodeling, Adkins constructed a peephole through one wall in order to view Cottrill while she was in the women's restroom. On the restroom side of the wall, Adkins installed a two-way mirror. The back of the mirror was covered with black paper except for the portion aligned with the peephole. The peephole went through the restroom wall to an adjoining room that Adkins used as his personal breakroom. There Adkins concealed the peephole with a bookshelf and paneling. Between 1997 and 2001, Adkins used the peephole to observe Cottrill in the restroom two or three times a day. Cottrill did not know or have any suspicion that Adkins was viewing her through the peephole. Adkins also stated that he unintentionally viewed Combs in the restroom once or twice after she began working in the Albany facility in 2001.

Cottrill encountered a sticky substance on the toilet seat in the restroom several times between 2000 and 2002. During each year from 1998 to 2002, Cottrill suffered from rashes from approximately April until early September. Cottrill stated in her deposition that at various times she experienced rashes on her legs, buttocks and ankles, and a fine rash on her chest and arms. Cottrill was treated by a series of doctors but never received a precise diagnosis. She stated that she did not know what was causing the rash from 1998 until 2000, but believed that the rashes were caused by the sticky substance thereafter. However, in July of 2002, Cottrill told her doctor that she did not know the cause of the rash. Cottrill complained to Adkins, and he replaced the toilet seat two or three times. In addition, on one occasion after using the restroom, Cottrill experienced a burning sensation for thirty minutes and concluded that there must have been a foreign substance on the toilet paper. Combs did not experience skin rashes and stated that she was unaware of Cottrill having rashes during the time that Combs worked at the Albany facility. However, Combs did experience a burning sensation one day after using the restroom and could see a clear, sticky substance on the toilet paper holder. Combs did not know what the substance was nor did she have a suspicion about its origins.

In January of 2002, Combs became suspicious of Adkins. She observed that Adkins followed Cottrill when Cottrill went to the restroom and believed that they were having an affair. However, approximately six months later, she realized that Cottrill was unaware that Adkins was following her. Combs looked inside the breakroom because she suspected that Adkins was doing something inappropriate, but she did not find anything unusual. Combs mentioned her suspicions once to her husband, but she did not tell Cottrill or anyone at MFA about her suspicions, observations or investigation. On the morning of October 17, 2002, when Adkins was not in the store, Combs again looked in the breakroom and this time discovered the peephole. Combs stated in her deposition that until she found the peephole, she did not know what Adkins was doing. David Cottrill, Vice Chairman of MFA's Board of Directors and Cottrill's brother-in-law, was present in the store at the time. Upon finding the peephole, Combs showed it to David Cottrill and explained that she thought Adkins was responsible. Then Combs informed Cottrill about the peephole. Cottrill went home, but Combs stayed for about 20 minutes to finish her work.

After learning of the peephole, David Cottrill immediately contacted Don Copenhaver, MFA President and CEO. Copenhaver then contacted Bill Streeter, MFA Senior Vice President of Agri-Services; Janice Schuerman, MFA Senior Vice President for Corporate and Member Services, who has responsibility for Human Resources; and Brian Griffith, MFA General Counsel. Streeter contacted Kent Bryan, the Regional Manager and Adkins's supervisor. Within an hour after Combs discovered the peephole, David Cottrill, Copenhaver, Streeter and Bryan were involved in the investigation. Additionally, later that day, Bryan notified Ron Skiles, MFA's Manager of Computer Services.

Bryan, Streeter and Skiles formulated a plan to catch Adkins by installing a video surveillance camera in the breakroom on Sunday, October 20, the earliest possible day it could be done. On Thursday night, Bryan called Cottrill and spoke with her and her husband, Chuck Cottrill. Bryan informed them about the video surveillance plan and told them that Cottrill and Combs should not work on Friday or Saturday and that he would meet with the appellants and their husbands on Sunday evening prior to installing the camera. Cottrill called in sick on Friday, and Combs worked a short day. Neither worked on Saturday. On Sunday night, Bryan, Skiles, Cottrill (Cottrill's husband was in the hospital that day due to a hand injury), Combs and her husband, and David Cottrill and his wife met at the home of Cottrill's mother-in-law. Around 11:30 p.m., Cottrill and others went to the store to set up the camera. Skiles asked for Cottrill's input on the location for the surveillance camera in the breakroom, and Cottrill agreed to its final location. Cottrill's sister-in-law gave her a ride home while Skiles and David Cottrill finished installing the camera.

Cottrill agreed to go into the Albany facility on Monday and use the restroom so that MFA could catch Adkins on video. Cottrill would wear a long shirt to protect herself from exposure to Adkins. Cottrill stated in her deposition that she did not disagree with the idea of identifying the perpetrator, but she also testified that "I agreed only because I was told that was the only way they could fire him; otherwise, they would just, you know, move him maybe to a different location.... [W]e had to have concrete proof that it was him in order for them to fire him." Both Cottrill and Combs agreed during their depositions that MFA did not do anything improper or wrong between October 17 and October 22, 2002.

On Monday, October 21, Cottrill came to work and used the women's restroom four times. Cottrill left the Albany facility between 9:45 and 10:00 a.m. and brought her husband home from the hospital. That night the appellants and their husbands, Bryan, Skiles and David Cottrill met at the home of Cottrill's mother-in-law to view the tape. The tape showed Adkins entering the breakroom and looking through the peephole each time Cottrill used the restroom. The next morning around 7:55 a.m., Copenhaver, Streeter and Griffith spoke with Bryan. Bryan then fired Adkins between 10:00 and 11:00 a.m., and MFA contacted law enforcement. The same day, an MFA employee repaired the peephole and the appellants used the women's restroom. Several days later, the entire wall was replaced. Cottrill and Combs continued working at MFA under a new manager.

On November 4 or 5, Bryan went to the Albany store to see the repairs undertaken to make the restroom secure and to see another peephole that was found. At this time, Cottrill opened the doors on the bookcase in the breakroom, revealing a plastic bag containing clear gelatinous material in a stick form, a bag containing deteriorated plant material, another bag containing a glove and leaves, and a second glove. Bryan thought the leaves were poison ivy. Cottrill stated in her deposition that an agronomist at MFA also thought they were poison ivy, but the agronomist was not deposed. These materials were turned over to law enforcement the same day. A forensic lab found the clear material to be cornstarch. The lab was unable to identify the leaves, apparently because they had deteriorated.

MFA offered counseling to Cottrill and Combs and fully cooperated with law enforcement. Adkins denied placing any foreign substances on the toilet seat or toilet paper holder. However, he admitted to the peeping and pleaded guilty to a class "C" felony of invasion of privacy. After filing discrimination charges with the EEOC and receiving right-to-sue letters, Cottrill and Combs brought an action against MFA for Title VII sex discrimination. The district court granted summary judgment in favor of MFA. On appeal, Cottrill and Combs argue that the district court erred in holding that they had not exhausted their administrative remedies on the disparate treatment claims and in finding that they failed to present a triable issue on the hostile work environment claims. MFA argues that Cottrill and Combs failed to...

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