Jill Cottrill v. MFA Incorporated ( 2006 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ________________
    No. 05-1748
    ________________
    Jill Cottrill; Mary Combs,                *
    *
    Appellants,                  *
    *
    Appeal from the United States
    v.                                  *
    District Court for the Western
    *
    District of Missouri.
    MFA, Incorporated, doing                  *
    business as MFA Agri-Services,            *
    Inc., a Missouri Corporation,             *
    *
    Appellee.                    *
    ________________
    Submitted: November 17, 2005
    Filed: April 7, 2006
    ________________
    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
    1
    The Honorable Gary A. Fenner, United States District Judge for the Western
    District of Missouri.
    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
    -2-
    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.
    -3-
    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
    -4-
    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.
    -5-
    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 exhaust
    administrative remedies with respect to their disparate treatment claims and some of
    their hostile work environment allegations and that they failed to establish a prima
    facie case of hostile work environment. MFA also contends summary judgment was
    appropriate because MFA was entitled to the modified Ellerth/Faragher affirmative
    defense under McCurdy v. Ark. State Police, 
    375 F.3d 762
    (8th Cir. 2004).2
    2
    The multiple-incident supervisor harassment cases of Burlington Indus., Inc.
    v. Ellerth, 
    524 U.S. 742
    , 765 (1998), and Faragher v. City of Boca Raton, 
    524 U.S. 775
    , 807 (1998), both held:
    When no tangible employment action is taken, a defending employer
    may raise an affirmative defense to liability or damages . . . . The
    defense comprises two necessary elements: (a) that the employer
    exercised reasonable care to prevent and correct promptly any sexually
    harassing behavior, and (b) that the plaintiff employee unreasonably
    failed to take advantage of any preventive or corrective opportunities
    provided by the employer or to avoid harm otherwise.
    McCurdy was a Title VII hostile work environment action arising from a single
    incident of supervisor sexual harassment not resulting in a tangible employment
    
    action. 375 F.3d at 769
    . The Eighth Circuit held that the employer was entitled to
    a modified Ellerth/Faragher affirmative defense because the employer took swift and
    effective action the moment it learned about the harassing conduct and the second
    -6-
    II.   DISCUSSION
    A.     Disparate Treatment
    Cottrill and Combs first argue that the district court erred in dismissing their
    claims of disparate treatment for failure to exhaust administrative remedies. We
    review de novo the proper reach of a Title VII claim. Nichols v. Am. Nat’l Ins. Co.,
    
    154 F.3d 875
    , 886 (8th Cir. 1998). A Title VII plaintiff must exhaust administrative
    remedies before bringing suit in federal court. A claimant must first timely file an
    administrative charge with the EEOC. 42 U.S.C. § 2000e-5(e); 
    Nichols, 154 F.3d at 886
    . The charge must be “sufficiently precise to identify the parties, and to describe
    generally the action or practices complained of.” 29 C.F.R. § 1601.12(b). If the
    EEOC gives the individual a right-to-sue letter following the EEOC investigation, the
    charge limits the scope of the subsequent civil action because “the plaintiff may
    [only] seek relief for any discrimination that grows out of or is like or reasonably
    related to the substance of the allegations in the administrative charge.” 
    Nichols, 154 F.3d at 887
    . Permitting claims to be brought in court which are outside the scope of
    the EEOC charge would circumscribe the EEOC’s investigatory and conciliatory role
    and deprive the charged party of notice of the charge. Kells v. Sinclair Buick-GMC
    Truck, Inc., 
    210 F.3d 827
    , 836 (8th Cir. 2000); Williams v. Little Rock Mun. Water
    Works, 
    21 F.3d 218
    , 223 (8th Cir. 1994).
    In their EEOC charges, Cottrill and Combs stated their charges identically as
    follows:
    prong of the affirmative defense was inapplicable to the facts of the case. 
    Id. at 771-
    72.
    -7-
    My supervisor, Scott Adkins, created a hostile work environment by
    peeping into the women’s restroom for years. Upon discovery of this I
    reported the peephole and in October 2002 Scott Adkins was caught and
    confessed. Adkins was convicted of a felony for invasion of privacy in
    Gentry County, Missouri.
    Cottrill and Combs did not allege disparate treatment in their EEOC charges. To
    establish disparate treatment on the basis of sex, a plaintiff needs to establish, in part,
    that similarly situated males were treated differently and that she suffered an adverse
    employment action. Gilooly v. Mo. Dep’t of Health & Senior Servs., 
    421 F.3d 734
    ,
    738-39 (8th Cir. 2005). The EEOC charges of Cottrill and Combs allege no facts
    concerning treatment of male employees nor do they identify any adverse
    employment action. In fact, it was not until Cottrill and Combs filed their opposition
    to MFA’s motion for summary judgment that they first construed their district court
    complaint to include claims for disparate treatment on the basis that the conditions
    of the women’s restroom were different from those of the men’s restroom.
    Furthermore, claims for disparate treatment do not arise from nor reasonably relate
    to the allegations of a hostile work environment as alleged in their administrative
    charges. An investigation of the peeping activities of Adkins would not reasonably
    be expected to uncover evidence of the condition of the men’s restroom. Although
    we will “liberally construe an administrative charge for exhaustion of remedies
    purposes, we also recognize that ‘there is a difference between liberally reading a
    claim which lacks specificity, and inventing, ex nihilo, a claim which simply was not
    made.’” Parisi v. Boeing Co., 
    400 F.3d 583
    , 585 (8th Cir. 2005) (quoting Shannon
    v. Ford Motor Co., 
    72 F.3d 678
    , 685 (8th Cir. 1996)). Because the hostile work
    environment claims were not broad enough to encompass disparate treatment claims,
    the district court properly dismissed the disparate treatment claims for failure to
    exhaust administrative remedies.
    -8-
    B.     Hostile Work Environment
    On appeal, Cottrill and Combs allege hostile work environment based on the
    peeping, the alleged contamination of the toilet seat and paper holder and MFA’s
    actions in conducting its investigation to catch Adkins. Because we view the
    evidence in the light most favorable to Cottrill and Combs, we will assume that
    Adkins was responsible for the sticky substance on the toilet seat and paper holder.
    MFA contends that the appellants failed to exhaust their administrative
    remedies because their EEOC complaints were based solely on the peeping and failed
    to mention the contamination and investigation allegations. We reject this argument
    because all three actions are sufficiently related to be part of the same claim for
    hostile work environment. The Supreme Court stated that a “hostile work
    environment claim is composed of a series of separate acts that collectively constitute
    one ‘unlawful employment practice.’” Nat’l R.R. Passenger Corp. v. Morgan, 
    536 U.S. 101
    , 117 (2002) (quoting 42 U.S.C. § 2000e-5(e)(1)) (holding that an individual
    could recover for acts occurring outside the statutory time period if at least one act
    occurred within the time period and the acts were part of the same hostile work
    environment). The Court explained that “[h]ostile environment claims are different
    in kind from discrete acts. Their very nature involves repeated conduct. . . . Such
    claims are based on the cumulative effect of individual acts.” 
    Id. at 115.
    Cottrill and
    Combs each exhausted administrative remedies with respect to the hostile work
    environment claims because the peeping, the contaminated toilet seat and the MFA
    investigation are a related stream of incidents that are part of a single claim for hostile
    work environment sex discrimination. Because a hostile work environment sexual
    harassment claim is a single cause of action, the charged party was not deprived of
    notice of the charge.
    -9-
    Although we find that the hostile work environment claims of Cottrill and
    Combs properly were exhausted, we affirm the district court’s grant of summary
    judgment. We review a grant of summary judgment de novo, viewing the facts in the
    light most favorable to the non-moving party. Pedroza v. Cintas Corp. No. 2, 
    397 F.3d 1063
    , 1068 (8th Cir. 2005). We apply the same standard as the district court and
    may affirm on any grounds supported by the record. Simpson v. Des Moines Water
    Works, 
    425 F.3d 538
    , 541 (8th Cir. 2005). Summary judgment is appropriate “if the
    pleadings, depositions, answers to interrogatories, and admissions on file . . . show
    that there is no genuine issue as to any material fact and that the moving party is
    entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). At the summary
    judgment stage, we do not consider portions of depositions that were made without
    personal knowledge or consist of hearsay. Murphy v. Mo. Dep’t of Corrections, 
    372 F.3d 979
    , 982 (8th Cir. 2004). The allegations of Cottrill and Combs do not create
    a genuine issue of material fact as to whether the peeping, the foreign substance on
    the toilet seat and paper holder and MFA’s investigation created a hostile work
    environment.
    Title VII prohibits an employer from “discriminat[ing] against any individual
    with respect to his compensation, terms, conditions, or privileges of employment,
    because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Discrimination
    includes inappropriate conduct that creates a hostile work environment. See 29
    C.F.R. § 1604.11(a)(3); Harris v. Forklift Sys., Inc., 
    510 U.S. 17
    , 21 (1993). To
    establish a prima facie case of sex discrimination based on a hostile work
    environment, a plaintiff employee must establish that (1) she was a member of a
    protected group; (2) she was subjected to unwelcome harassment; (3) the harassment
    was based on sex; and (4) the harassment was sufficiently severe or pervasive as to
    affect a term, condition, or privilege of employment. Schoffstall v. Henderson, 
    223 F.3d 818
    , 826 (8th Cir. 2000). Here we focus on the fourth element.
    -10-
    To determine whether the harassment affected a term, condition, or privilege
    of employment, we consider “all the circumstances, including the frequency of the
    discriminatory conduct; its severity; whether it is physically threatening or
    humiliating, or a mere offensive utterance; and whether it unreasonably interferes
    with an employee’s work performance.” 
    Faragher, 524 U.S. at 787-88
    (quotation
    omitted); see also Baker v. John Morrell & Co., 
    382 F.3d 816
    , 828 (8th Cir. 2004).
    In addition, the “sexually objectionable environment must be both objectively and
    subjectively offensive, one that a reasonable person would find hostile or abusive,
    and one that the victim in fact did perceive to be so.” 
    Faragher, 524 U.S. at 787
    ; see
    also Kratzer v. Rockwell Collins, Inc., 
    398 F.3d 1040
    , 1047 (8th Cir. 2005) (“[A]n
    employee’s admission that [offensive conduct] was not abusive is fatal to the
    employee’s Title VII sexual harassment claim.”); 
    Baker, 382 F.3d at 828
    (stating that
    “the victim must subjectively believe her working conditions have been altered”).
    “[I]f the victim does not subjectively perceive the environment to be abusive, the
    conduct has not actually altered the conditions of the victim’s employment, and there
    is no Title VII violation.” 
    Harris, 510 U.S. at 21-22
    .
    We first consider Cottrill’s hostile work environment claim. Cottrill was not
    aware of the peeping, stating in her deposition 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.
    A Title VII plaintiff “may only rely on evidence relating to harassment of
    which she was aware during the time that she was allegedly subject to a hostile work
    environment.” Hirase-Doi v. U.S. West Communications, Inc., 
    61 F.3d 777
    , 782
    (10th Cir. 1995). Where the plaintiff and her female coworkers were harassed by a
    male coworker, the Tenth Circuit stated in Hirase-Doi that the plaintiff “could not
    subjectively perceive [her coworker’s] behavior towards others as creating a hostile
    work environment unless she knew about that behavior.” Id.; cf. Pryor v. Seyfarth,
    -11-
    Shaw, Fairweather & Geraldson, 
    212 F.3d 976
    , 978 (7th Cir. 2000) (noting that
    supervisor’s alleged leering at employee without employee knowing it was irrelevant
    to employee’s Title VII sexual harassment claim); Burnett v. Tyco Corp., 
    203 F.3d 980
    , 981 (6th Cir. 2000) (holding that the allegations of plaintiff’s co-employees of
    sexual harassment by manager were irrelevant to plaintiff’s hostile work environment
    claim absent evidence that plaintiff was contemporaneously aware of the alleged
    harassment); Bradshaw v. Golden Rd. Motor Inn, 
    885 F. Supp. 1370
    , 1381 (D. Nev.
    1995) (holding that supervisor’s routine vulgar references to plaintiff could not
    support a hostile work environment claim because plaintiff was unaware of the
    comments and “to show that he or she perceived the ‘environment’ as ‘hostile,’ [a
    Title VII plaintiff] must at least have been aware of those comments”).
    In addition, this case is factually distinguishable from Liberti v. Walt Disney
    World Co., 
    912 F. Supp. 1494
    (M.D. Fla. 1995), cited by the appellants, where the
    district court denied Disney’s motion for summary judgment as to a Title VII claim
    for hostile work environment based on at least one male employee, John Giangrossi,
    videotaping and peeping at female Disney dancers in their dressing rooms. Although
    the plaintiffs were not subjectively “aware of Giangrossi’s identity and the exact
    nature and extent of his activities until after he was apprehended” in January 1992,
    as early as May of 1991 the dancers were aware of peepholes in their dressing area,
    in July of 1991 Disney told the dancers not to worry about any problems because a
    Disney employee had been caught “peeping” and had been fired, “[a]dditional and
    new holes were discovered after Mr. Giangrossi’s arrest and termination, and the
    Plaintiffs continued to be concerned about the security of their dressing areas after
    January of 1992.” 
    Id. at 1499,
    1505. By contrast, here there is no question of
    material fact as to Cottrill’s subjective awareness because Cottrill admitted that she
    had no knowledge of the peeping by Adkins.
    -12-
    Aside from the peeping activities of Adkins, which Cottrill did not subjectively
    perceive, the contamination of the toilet seat and paper holder and the actions of MFA
    during its investigation were not so objectively hostile as to poison Cottrill’s work
    environment. See Tuggle v. Mangan, 
    348 F.3d 714
    , 722 (8th Cir. 2003). With
    respect to the contamination, Cottrill experienced a burning sensation on only one
    occasion and rashes over a number of years. However, Cottrill told her doctors and
    stated in her deposition that she did not know the cause of her skin rashes, which both
    preceded and continued after Cottrill noticed the sticky substance on the toilet.
    Regarding MFA’s handling of the investigation, Combs informed David Cottrill
    about the peephole even before she notified Cottrill, causing MFA immediately to
    launch an investigation. Cottrill did not use the restroom between the time the
    peephole was discovered and the time Adkins was terminated except to assist with
    the investigation. Cottrill argues that she was subjected to a hostile work
    environment by using the restroom on Monday, October 21, in order to assist in
    catching Adkins on videotape entering the breakroom and looking through the
    peephole. Yet Cottrill’s argument is belied by the fact that she consented to use the
    restroom on Monday, she wore a long shirt for protection, her husband and other
    family members were involved in her decision to participate, and she even helped set
    up the camera in the breakroom and agreed to its location. In addition, after Adkins
    was fired, Cottrill continued to work in the Albany facility and to use the women’s
    restroom. Although MFA might have been able to devise a different method of
    identifying Adkins as the peeper without asking Cottrill to participate, Cottrill
    admitted in her deposition that MFA did nothing improper between October 17 and
    October 22.
    Because Cottrill never subjectively perceived the peeping, in order to evaluate
    her hostile work environment claim, we focus solely on the contamination of the
    toilet seat and paper holder and the circumstances of MFA’s investigation, which
    Cottrill actually perceived. Based on the totality of the circumstances of which
    -13-
    Cottrill was aware, and compared to the facts in other cases in which we have rejected
    hostile work environment claims, we hold 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 at MFA’s Albany retail facility in violation
    of Title VII. See LeGrand v. Area Res. for Cmty. & Human Servs., 
    394 F.3d 1098
    ,
    1100-03 (8th Cir. 2005) (finding no objectively hostile work environment created by
    defendant’s unwelcome sexual advances on three separate occasions over a nine-
    month period, including asking the employee to watch pornographic movies with
    him, hugging and kissing, and grabbing the employee’s buttocks and thigh); 
    Tuggle, 348 F.3d at 720
    (holding no actionable hostile work environment based on
    defendant’s inappropriate sexual comments, taking a photograph of plaintiff’s rear
    end and giving plaintiff undesirable work assignments); Duncan v. Gen. Motors
    Corp., 
    300 F.3d 928
    , 933 (8th Cir. 2002) (holding no actionable hostile work
    environment where co-employee asked plaintiff if she would have a relationship with
    him, touched the plaintiff’s hand on four to five occasions, requested the plaintiff
    sketch a sexually objectionable planter, asked plaintiff to complete a task on his
    computer where its screen saver depicted a naked woman, hung an offensive poster,
    and asked plaintiff to type a document for him containing sexually offensive items).
    Therefore, the district court did not err in granting summary judgment to MFA on
    Cottrill’s hostile work environment claim.
    We next consider Combs’s hostile work environment claim. Regarding MFA’s
    plan to catch Adkins on video on October 20, Combs attended the meeting on Sunday
    night but was not directly involved with the video surveillance the following day.
    With respect to knowledge of the peeping, when asked in her deposition if she
    suspected that Adkins was viewing her during the period from July of 2002 until the
    discovery of the peephole in October of 2002, Combs responded in the negative.
    Because Combs was not aware that Adkins viewed her through the peephole once or
    twice, this conduct did not alter the conditions of her employment in violation of Title
    VII. See 
    Harris, 510 U.S. at 21-22
    .
    -14-
    However, Combs did suspect that Adkins was engaged in some type of
    inappropriate conduct. When asked if Combs suspected that Adkins was viewing
    Cottrill, Combs responded, “I suspected he was doing something. I didn’t know
    what.” Combs became suspicious in early 2002, but she did not reveal this to Cottrill
    or anyone else at MFA prior to discovering the peephole on October 17, 2002. Even
    if Combs subjectively perceived the environment to be hostile, at most Combs has
    alleged that she suspected Adkins was doing something inappropriate and that she
    experienced a burning sensation once after using the restroom at work. Additionally,
    both before and after she discovered the peephole, Combs was able to perform her
    employment duties and continued to use the women’s restroom in the Albany facility.
    See 
    id. at 23
    (directing courts to look at all the circumstances, including whether the
    alleged harassment unreasonably interferes with an employee’s work performance,
    in deciding whether an environment is objectively offensive). Looking at the totality
    of the circumstances that Combs perceived, Combs has not established that the
    alleged harassment was objectively “so intimidating, offensive, or hostile that it
    poisoned the work environment.” 
    Gilooly, 421 F.3d at 738
    (quoting Scusa v. Nestle
    U.S.A. Co., Inc., 
    181 F.3d 958
    , 967 (8th Cir. 1999) (internal quotation omitted)).
    Therefore, the district court properly granted summary judgment in favor of MFA on
    Combs’s hostile work environment claim.
    The conduct of Adkins was certainly reprehensible. However, for the reasons
    given above, Cottrill and Combs each failed to present a prima facie case of hostile
    work environment against MFA sufficient to survive summary judgment. Therefore,
    we find it unnecessary to address whether MFA is entitled to an affirmative defense.
    III.   CONCLUSION
    We hold that Cottrill and Combs failed to exhaust their administrative remedies
    with regard to their disparate treatment claims and that the district court properly
    -15-
    granted summary judgment on their hostile work environment claims. Accordingly,
    we affirm the judgment of the district court.
    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 breakroom 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
    -16-
    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 women'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
    -17-
    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 Cottrill 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 clear 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.
    -18-
    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
    (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 (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 (1998); Harris v. Forklift Systems, Inc., 
    510 U.S. 17
    , 21-22
    3
    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.
    -19-
    (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 coemployees
    generally." 
    Faragher, 524 U.S. at 805
    .
    MFA argues that under our decision in McCurdy v. Ark. State Police, 
    375 F.3d 762
    , 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
    , and 
    Faragher, 524 U.S. at 806-07
    , 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
    -20-
    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.
    _________________________
    -21-