Jill Cottrill Mary Combs v. Mfa, Incorporated, Doing Business as Mfa Agri-Services, Inc., a Missouri Corporation

MURPHY, Circuit Judge,

concurring in part and dissenting in part.

I concur in much of the court’s opinion, but I respectfully dissent from that part dealing with Jill Cottrill’s hostile work environment claim because' material issues of fact made summary judgment inappropriate on that claim. All factual issues must be viewed in the light most favorable to her as the respondent to the summary judgment motion by MFA. See Duncan v. Delta Consolidated Industries, Inc., 371 F.3d 1020, 1024 (8th Cir.2004). 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.

It is undisputed that for some four years Cottrill’s privacy was invaded several times each work day when she was spied on while using the women’s restroom. Moreover, the perpetrator was her supervisor and store manager Scott Adkins, who had constructed a hidden peephole opening from the women’s restroom into a bookcase in his personal breakroom. The record reveals how Cottrill felt about this violation by her reaction on October 17, 2002, when she learned what had been going on. On that day Mary Combs told her that Adkins had a peephole and showed her how he had been able to look into the women’s restroom from his break-room perch while Cottrill used the facilities. Cottrill was so upset that she became physically ill and had to leave work and retreat to the privacy of her home.

Senior management also learned the same day that the peephole existed and that Combs had seen Adkins disappear whenever Cottrill left for the restroom. David Cottrill, the vice chair of the MFA board and Jill’s brother in law, happened to be in the store and he passed the information on to company headquarters. Shortly thereafter Kent Bryan, the regional manager to whom Adkins reported, and Billy Streeter, a senior vice president, decided they would try to catch Adkins in the act of peeping rather than confront him about what they had learned. Together with Ron Skiles, the computer services manager, they devised a plan to install a hidden camera in Adkins’ breakroom and have Jill Cottrill use the toilet in the worn-*640en’s restroom to lure Adkins into peeping on her.

Bryan also talked to David Cottrill, who arranged a meeting the following weekend at his mother’s house. At the meeting Jill Cottrill was presented with the bait and tape plan devised by the managers. She was told that the only way Scott Adkins, who was close to both Bryan and David Cottrill, could be discharged would be if he were caught on videotape while he was spying on her. She would need to act as a lure by using the facilities in the women’s restroom and would have to expose herself multiple times because the managers wanted more than one “hit.” Cottrill testified in her deposition that she was uncomfortable with the plan, but was told “that was the only way they could fire him.” When she exhibited her reluctance to expose herself, the managers agreed she could wear a long shirt for protection. The following Monday she used the toilet in the women’s restroom four times while Adkins observed her through the peephole and was caught on videotape. Cottrill testified that before they watched the videotape, she heard Bryan say: “If he only did it once, let’s don’t do anything.” Cottrill testified that the entire experience left her “just in a state of shock and kind of a daze” and that she felt “just devastation.” She has since sought counseling which is still ongoing.

At oral argument counsel for MFA responded in the affirmative when asked if any human resources personnel had participated in devising the bait and tape plan, but the record does not reflect that. Janice Schuerman, the vice president responsible for human resources, was notified about the discovery of the peephole and may have been told about the idea of using surveillance equipment. There is no indication in the record, however, that she or anyone from her department was involved in the decision to have Cottrill lure Adkins into peeping by using the restroom four different times while he watched. Instead three male managers with other responsibilities devised the scenario in which Cott-rill was required to play an embarrassing and demeaning role, repeatedly serving as bait while engaging in what are normally very private acts (as opposed to combing her hair or checking her makeup, for example), despite the considerable circumstantial evidence that existed about Adkins’ surreptitious spying.

There are other genuine issues of material fact in the record. Cottrill testified that Adkins had treated her in a “Jekyll- and-Hyde” manner for several years prior to her discovery of the peeping and had been arbitrary and “very controlling” about her time off. This treatment was upsetting enough to lead her to inquire about other work in 2001. During that same time period both urine and a clear sticky substance began appearing on the toilet seat in the women’s restroom, causing Cottrill to complain repeatedly to Adkins and to request a lock for the outside door. Cottrill also testified that she suffered from a serious and persistent rash which caused swollen red bumps and ridges to appear on her buttocks and the back of her legs. The rash was so debilitating that she had trouble walking and repeatedly needed medical attention. According to Cottrill it was similar to rashes developed by other employees who used the women’s restroom, and it disappeared after Adkins was terminated. Combs, also testified about foreign substances on the toilet seat and the toilet paper and about a “terrible” burning sensation she experienced after using the facilities. Two weeks after Adkins was discharged, three bags containing organic substances and a pair of gloves were found in the bookcase in his breakroom. One bag contained soluble corn starch, which could have been the *641clear sticky substance on the toilet seat, and Cottrill testified that MFA agronomist Lyndon Brush told her he was “99 percent sure” that there was poison ivy in the other two bags. There was in addition evidence that MFA failed to cover up other peepholes into the women’s restroom, including a hole in the ceiling above the toilet.

Although Cottrill was offered and received counseling after Adkins was discharged, she testified that Bryan first delayed her worker compensation claim to pay for the counseling and then only “reluctantly” authorized it. He then persistently asked her when she would be “about done,” and shamed her publicly by telling her new manager to make sure that all her fellow employees knew how much worker compensation claims like her’s were costing the company. Bryan also told her that she should simply “get over” and “forget” what had happened, became highly critical of her work, and forced her manager to go over what she did “with a fine-tooth comb.”

As the majority recounts, there was indeed countervailing evidence in the record. This included accounts by other MFA employees such as Bryan and Streeter, possible other causes for Cottrill’s rash, and her conflicting deposition testimony.3 Weighing the value of conflicting evidence is improper on summary judgment, however, and all facts and the fair inferences from them must be viewed in the light most favorable to Jill Cottrill. See Brosseau v. Haugen, 543 U.S. 194, 194 n. 1, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004).

Conduct giving rise to an actionable hostile work environment under Title VII includes not only sexual advances and demands for favors but all “sexually demeaning” behavior which alters the terms or conditions of work. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). The question to be resolved is whether the environment was one “that a reasonable person would find hostile or abusive, and ... that the victim did in fact perceive to be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). Whether a hostile workplace existed for Jill Cottrill must be based on the totality of the circumstances affecting her since a “work environment is shaped by the accumulation of abusive conduct, and the resulting harm cannot be measured by carving it into a series of discreet incidents.” Hathaway v. Runyon, 132 F.3d 1214, 1222 (8th Cir.1997) (internal quotations omitted). If there is a nexus between abusive conduct by a supervisor based on sex and other acts in the workplace, all may be considered together in establishing a prima facie claim. See id. (snickers and acts linked to previous sexual advances relevant to hostile work environment claim); . see also Van Steenburgh v. Rival Co., 171 F.3d 1155, 1159 (8th Cir.1999) (non sexual incident within statute of limitations actionable if related to time barred sex based incidents). Acts by supervisors generate special concern, as “courts have consistently held” that they have “greater power to alter the environment than acts of coem-ployees generally.” Faragher, 524 U.S. at 805, 118 S.Ct. 2275.

MFA argues that under our decision in McCurdy v. Ark. State Police, 375 F.3d *642762, 771-72 (8th Cir.2004), it is entitled as a matter of law to a modified version of the affirmative defense articulated in Ellerth, 524 U.S. at 765, 118 S.Ct. 2257, and Faragher, 524 U.S. at 806-07, 118 S.Ct. 2275, even if there are triable issues of material fact on Cottrill’s hostile work environment claim. It contends that it had policies prohibiting sexual harassment and that it exercised reasonable care to correct the situation. Yet a fact finder could determine that MFA’s policies were illusory since they had not provided an effective check on Adkins and they were not consulted in formulating the company’s response to his behavior. If the record were viewed in a light most favorable to Cottrill, a reasonable fact finder could determine that MFA’s response was designed to protect Adkins rather than his victim. See McCurdy, 375 F.3d at 771 (no liability for supervisor harassment where employer takes “swift and effective ” remedial action) (emphasis added). Moreover, the parties agree that Cottrill and Combs periodically brought the problems in the women’s toilet area to Adkins’ attention and that he merely replaced the toilet seat several times. Although Cottrill did not make a complaint about his “ ‘Jekyll and Hyde’ ” behavior, she testified in her deposition that this was because she was aware that Adkins was close to regional manager Bryan and she therefore feared retaliation. In sum, the record reveals that there are also issues of material fact related to MFA’s affirmative defense.

The grant of summary judgment to MFA on Jill Cottrill’s hostile work environment claim should be reversed, and this claim should be remanded for trial.

. Although Cottrill responded "no” to opposing counsel's deposition question about whether MFA did anything improper after the discovery of the peephole, she made it clear that she had only agreed to subject herself to further peeping because management said that Adkins would not otherwise be discharged.