Arkansas Company retreat spawns privacy suit Two vice presidents took photos of a manager passed out in his underwear in hotel room

By Pat Murphy The Daily Record Newswire BOSTON -- An Arkansas employer that simply wanted to engage in a little team-building now finds itself exposed to liability due to embarrassing photos taken of a drunken employee at a company retreat. The employer facing potential damages for invasion of privacy is J.B. Hunt Transport. In May 2007, the Lowell, Arkansas trucking company sponsored a retreat for some of its executives in Kansas City, Mo. The event was organized by JBH vice-presidents Rich Allensworth and Mark Emerson. David Coombs, a JBH manager who worked under Allensworth and Emerson, attended the retreat. Coombs shared a hotel room with Allensworth. After the JBH employees attended a Kansas City Royals baseball game, Coombs and some other attendees went to local bars and clubs. Coombs later admitted that he had too much to drink and, according to a fellow employee, narrowly avoided being arrested by police for urinating in public. Coombs did manage to find his way back to his hotel room. According to Coombs, after brushing his teeth and kicking off his shoes, he laid down on the floor to sleep. Allensworth later came into the room with Emerson and saw Coombs on the floor. According to the two vice presidents, Coombs was in his underwear. Coombs disputes this point and accuses the pair of undressing him while he was passed out. In any event, Allensworth and Emerson were inspired to frat house hijinks. Allensworth allegedly used a pen to write "help me" on Coombs's leg and another message on the drunk man's forehead. Emerson allegedly sprayed shaving cream on Coombs' face and placed a cigarette in his mouth. After taking photos of Coombs with his cell phone, Emerson allegedly called other employees -- both male and female -- to come into the room and view Coombs in his embarrassing state. One of those employees would later claim that he saw Allensworth tugging at Coombs' underwear. When Coombs awoke the next morning, he had no clothes on and could remember nothing of what had occurred. According to Coombs, Emerson later showed him and other employees the embarrassing cell phone photos. Back at work on Monday, Allensworth and Emerson apparently realized that a line had been crossed. Fearing consequences, the two VPs allegedly instructed everybody who had attended the event to keep their lips sealed about what had occurred. But as such things tend to do, word of the hotel room photo session leaked out and JBH commenced an investigation of the whole affair. As a result of the investigation, the company terminated Allensworth and reprimanded Emerson. Coombs himself didn't escape unscathed. Although the reasons are unclear from the court record, the company cut Coombs' annual salary from $106,000 to $75,000. Coombs later left JBH and attempted to start his own trucking business. JBH tried to stop Coombs, suing its former employee in Arkansas state court for breaching a noncompete agreement. Sued by JBH, Coombs decided that it was high time to resurrect the matter of what his former supervisors had allegedly done to him in the hotel room. Coombs filed a counterclaim against JBH, Allensworth and Emerson for invasion of privacy, outrage, negligent retention and wrongful discharge, based on the events in Kansas City. The trial court granted summary judgment to the defendants on Coombs' counterclaim. But last month the Arkansas Court of Appeals decided that Coombs could proceed with his invasion of privacy claims, including a vicarious liability claim against JBH. As to the substance of the lawsuit, the court found that Coombs sufficiently alleged a significant intrusion of his privacy: Here, Coombs produced evidence that Allensworth and his guest, Emerson, not only came into the hotel room but also invited others into the room for the purpose of looking at him in his debilitated state. They also wrote on his body, sprayed shaving cream on him, possibly removed some of his clothing, and took photographs of him and showed them to others. The alleged intrusion was therefore not limited to crossing the threshold of the hotel room. It encompassed acts that purportedly encroached upon Coombs's physical self and personal dignity. What should trouble employers is the court's decision to reinstate Coombs' vicarious liability claim against JBH. On this issue, the court explained: A case could be made that something more than an element of personal titillation or gratification characterized Allensworth's and Emerson's actions. The actions could also signify an attempt to exercise supervisory authority, an attempt to engage in group bonding among employees, and an attempt to protect not only themselves but the company from any repercussions of the events. When an overlap of the business and the personal are present in an employee's actions, an employer may be vicariously liable under the doctrine of respondeat superior, depending on the circumstances. Published: Fri, Feb 17, 2012