622 F.3d 745 (7th Cir. 2010), 08-3420, McCann v. Iroquois Memorial Hosp.

Docket Nº:08-3420.
Citation:622 F.3d 745
Opinion Judge:ROVNER, Circuit Judge.
Party Name:Valerie McCANN and Leslie Lindberg, Plaintiffs-Appellants, v. IROQUOIS MEMORIAL HOSPITAL, et al., Defendants-Appellees.
Attorney:Ronald E. Boyer, Attorney, Boyer & Thompson, Watseka, IL, Scott A. Calkins, Attorney (argued), Reno, Zahm, Folgate, Lindberg & Powell, Rockford, IL, for Plaintiffs-Appellants. Tamara K. Hackmann, Attorney (argued), Heyl, Royster, Voelker & Allen, Urbana, IL, for Defendants-Appellees.
Judge Panel:Before FLAUM, MANION, and ROVNER, Circuit Judges.
Case Date:September 13, 2010
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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622 F.3d 745 (7th Cir. 2010)

Valerie McCANN and Leslie Lindberg, Plaintiffs-Appellants,

v.

IROQUOIS MEMORIAL HOSPITAL, et al., Defendants-Appellees.

No. 08-3420.

United States Court of Appeals, Seventh Circuit.

September 13, 2010

Argued March 31, 2009.

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[Copyrighted Material Omitted]

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Ronald E. Boyer, Attorney, Boyer & Thompson, Watseka, IL, Scott A. Calkins, Attorney (argued), Reno, Zahm, Folgate, Lindberg & Powell, Rockford, IL, for Plaintiffs-Appellants.

Tamara K. Hackmann, Attorney (argued), Heyl, Royster, Voelker & Allen, Urbana, IL, for Defendants-Appellees.

Before FLAUM, MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

Behind a closed office door, two co-workers at Iroquois Memorial Hospital, Valerie McCann and Dr. Leslie Lindberg, had a conversation in which they criticized hospital administration. Unbeknownst to them, their conversation was recorded by a dictation machine, transcribed, and handed to those they criticized. Believing that the recording was illegally obtained, disclosed, and used against them, they sued another employee, Susan Freed, along with the hospital, its Board of Trustees, and its Chief Executive Officer, Stephen Leurck, under the Wiretap Act, 18 U.S.C. §§ 2511, 2520. McCann and Lindberg believe that Freed came into Lindberg's office while they were talking, and that while she was out of their line of sight picking up papers next to Lindberg's dictation machine, she deliberately turned on the machine to record their conversation. Freed responds that she interrupted a conversation of theirs once but not on the date of the taped conversation, and posits that Lindberg forgot to turn off his dictation machine when McCann entered his office. The district court granted summary judgment for the defendants, based largely on inferences drawn from the recording itself. But because the parties presented two different but plausible stories, an issue of fact remains. We conclude that the claims against Freed and the hospital boil down to a swearing contest and should not have been resolved on summary judgment. Even if Freed acted unlawfully, however, the evidence does not show that CEO Leurck knew that, and the only trustee who might have known did not use or disclose the recording, so we affirm the summary judgment of the claims against Leurck and the trustees.

I. Background

This saga begins with McCann's termination from the hospital, which she resented.

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McCann was formerly the director of physicians' services, but in early February 2006, she and several other employees were given a week to resign and told that if they resigned by February 10 they could apply for new positions. McCann thought that this reorganization was really a way for the then new CEO Stephen Leurck to get rid of people he did not like, and she thought she was a target. McCann tried to meet with Leurck to discuss the possibility of a new position, but he did not meet with her until February 10. The upshot of the meeting was that she no longer had a job at the hospital and would not be considered for a new one.

Around the same time, Leurck and the Board of Trustees were also reorganizing the radiology department. This put Lindberg's radiology services to the hospital at risk. The hospital used the services of Lindberg along with another group of doctors, but it voted to use only one provider in the future. They asked Lindberg and others to submit proposals if they wished to be considered for the position of exclusive provider, but Lindberg's proposal would have required a second, unnamed provider along with him. Lindberg disapproved of the way the administration was handling things, and the administration was not particularly happy with him either. Freed, who oversaw the staff who transcribed the radiologists' dictated reports, emailed Leurck and another administrator, Susan Berg, complaining about Lindberg's dictation habits-apparently he began late in the day-and their effect on her staff and patient care. Berg added that Lindberg " let ‘ politics' get in the way of patient care and safety."

On the afternoon of February 24, 2006, McCann went to visit Lindberg in his office. She no longer worked for the hospital, but she still worked for the Independent Physicians Association, of which Lindberg was president, and she needed Lindberg to sign some checks for the Association. When McCann arrived, Lindberg was dictating a radiology report into his dictation machine. He says that he turned the machine off, and the two exchanged greetings. According to McCann and Lindberg, while they were talking Freed entered the office without knocking. Freed crossed out of their line of sight, picked up some requisition forms that were next to Lindberg's dictation machine, and left. According to Freed, she wanted to minimize her interruption and left the office as quickly as she could. She generally remembered the same sequence of events, but contended that it occurred on February 10 rather than February 24. Freed denied being in Lindberg's office on the 24th.

Somehow, the dictation machine was turned on in mid-conversation between Lindberg and McCann. The time-stamp on the tape-which the parties acknowledge cannot be changed-shows that Lindberg last entered the bar code for a new patient at 3:17p.m. on February 24. He dictated into the machine for just under two minutes. After Lindberg's last sentence of medical dictation, there is a clicking sound, and the recording picks up again in the middle of a sentence in which McCann is discussing the checks she brought for Lindberg to sign. McCann and Lindberg say that some preliminary pleasantries to their conversation were not captured on the recording.

The conversation eventually turned to events at the hospital of which the two were critical. The two discussed the reorganization in radiology and what it would mean for Lindberg, and he asked McCann how she thought the other doctors would fare under the reorganization. McCann described what she saw as Leurck's " pecking order" -a sort of hit list-and Lindberg was at the top. Both McCann and Lindberg criticized the trustees and especially

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Leurck. During the conversation McCann received a call on her cell phone and spoke briefly about an event she was attending later that day. The call was from her home, and phone records show it...

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