74 F.3d 824 (7th Cir. 1996), 95-1164, Griffin v. City of Milwaukee

• Docket Number: 95-1164.
• Date: 25 January 1996
• Citation: 74 F.3d 824
• Parties: Cynthia L. GRIFFIN, Plaintiff-Appellant, v. CITY OF MILWAUKEE, Robert J. Ziarnik, Frank Sepic, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 824

74 F.3d 824 (7th Cir. 1996)

Cynthia L. GRIFFIN, Plaintiff-Appellant,

v.

CITY OF MILWAUKEE, Robert J. Ziarnik, Frank Sepic, et al.,

Defendants-Appellees.

No. 95-1164.

United States Court of Appeals, Seventh Circuit

January 25, 1996

Argued Sept. 22, 1995.

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Robert J. Gingras, Wendy A. Williams, Paul A. Kinne (argued), Madison, WI, for Plaintiff-Appellant.

Grant F. Langley, Susan E. Lappen (argued), Office of City Attorney, Milwaukee, WI, for Defendants-Appellees.

Before BAUER, CUDAHY, and RIPPLE, Circuit Judges.

BAUER, Circuit Judge.

Cynthia Griffin sued the defendants for allegedly intercepting her personal telephonic and non-telephonic conversations in violation of the federal wiretapping act and analogous Wisconsin state law. 18 U.S.C. Sec. 2520(a); Wis.Stats. Sec. 968.31(2m). Griffin also brought a civil rights action under 42 U.S.C. Sec. 1983 for various federal constitutional claims, including alleged violations of her rights to freedom of speech, freedom of privacy, and freedom from unreasonable searches and seizures. And more, Griffin asserted a gender discrimination claim under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e et seq., and the Fourteenth Amendment to the United States Constitution. Griffin's initial complaint included four other plaintiffs (two of Griffin's co-workers at the Milwaukee Police Department and two employee unions). Griffin filed a separate complaint alleging her gender discrimination

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claim and litigated that action separately from the other plaintiffs. This appeal concerns only Griffin's claims. Griffin appeals the district court's order granting the defendants' motion for summary judgment. This court has jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm.

I.

Facts

This case arises out of the defendants' alleged interception of Griffin's personal telephonic and non-telephonic conversations when she worked as a telecommunicator in the Milwaukee Police Department ("MPD") Communications Operations Division ("COD") from April 1987 to June 1989. The individual defendants all held supervisory or management positions in the MPD or COD during that time. The COD receives the Department's incoming emergency calls and coordinates the dispatching of officers. A reel-to-reel taping device in the COD records all incoming emergency calls.

In April 1987, Norstan Communications ("Norstan") installed a telephone system in the MPD Police Administration Building. The telephones installed in the COD had several relevant features. Some individuals in the COD could contact other telephones in the division by using the "intercom" function. Griffin alleged that this function allowed the person initiating the intercom call to hear conversations occurring in the room where the recipient telephone was located. In addition, supervisors could monitor telephone calls made at telecommunicator and dispatcher workstation telephones by using the "silent monitor" function. Individual telecommunicators and dispatchers received no indication when supervisors used this feature, although all COD employees knew that supervisors might monitor their workstation calls for supervisory, evaluation, and training purposes. Griffin alleged that this function also allowed for monitoring of the lunchroom telephone, although COD supervisors told employees that the lunchroom telephone would not be monitored and that they should use that telephone for personal calls. The telephones at each telecommunicator and dispatcher workstation also had an "instant recall recorder" that activated when the telephone line was engaged and could record either ten or twenty minutes of continuous conversation. Finally, Griffin contended that certain telephones in the COD possessed an "executive override" feature, which allowed a caller to override a busy signal and break into a telephone conversation. Before an override would occur, both parties to the conversation would hear a ringing tone. The defendants countered that none of the telephones in the COD were equipped with the executive override function.

Griffin offered five pieces of evidence in support of her claim that the defendants illegally used the telephone system to monitor her personal telephonic and non-telephonic conversations. First, she offered evidence that the silent monitor function was used 950 times during a nineteen-month period and that the executive override function was used 29 times during that same period. From this "extravagantly large" number, Griffin concluded that the defendants must have used the telephone system to intercept her private conversations. Second, Griffin presented her deposition testimony that Sergeant Laura Schwefel, an officer in the COD but not a defendant in this case, told Griffin that she had listened to a telecommunicator's personal telephone call. Third, Griffin proffered her deposition testimony that she heard two beeps and some breathing while she used the lunchroom telephone, which was not supposed to be monitored. Fourth, Griffin offered evidence that the instant recall recorder on a COD telephone recorded a conversation among several COD employees. Finally, Griffin offered her deposition testimony that she had seen defendant Proulx using the telephone system to monitor a non-telephonic conversation between two other telecommunicators.

II.

Summary Judgment

1. Standard of Review

   We review the grant of summary judgment de novo, applying the same standards as the district court and viewing the

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   record and all reasonable inferences to be drawn from it in the light most favorable to the non-moving party. Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The nonmovant must articulate specific facts demonstrating that a genuine issue exists for trial. A dispute about a material fact is "genuine" only if a reasonable jury could render a verdict for the non-moving party "if the record at trial were identical to the record compiled in the summary judgment proceeding." CSX Transp., Inc. v. Chicago and North Western Transp. Co., Inc., 62 F.3d 185, 188 (7th Cir.1995), quoting Russell v. Acme-Evans Co., 51 F.3d 64, 70 (7th Cir.1995).

2. Analysis

   The district court concluded that the defendants had demonstrated that no genuine issue of material fact existed because of the absence of evidence supporting Griffin's statutory and constitutional claims, and that they were entitled to judgment as a matter of law. The court noted that, under Rule 56, Griffin could not rely on the pleadings but had to...