Acosta v. Scott Labor LLC

• Decision Date: 15 July 2005
• Docket Number: No. 05 C 2518.,05 C 2518.
• Citation: 377 F.Supp.2d 647
• Court: U.S. District Court — Northern District of Illinois
• Parties: Denis ACOSTA,<SMALL><SUP>1</SUP></SMALL> Leticia Rosas, Irma Abrajan, Maria De Jesus Garcia and Patricio Solano on behalf of themselves and other persons similarly-situated, known and unknown, Plaintiffs, v. SCOTT LABOR LLC, Scott Borre and the Form House, Inc., Defendants. Scott Borre, an individual, Counter-Plaintiff, v. Denis Acosta, Counter-Defendant.

377 F.Supp.2d 647

Denis ACOSTA,¹ Leticia Rosas, Irma Abrajan, Maria De Jesus Garcia and Patricio Solano on behalf of themselves and other persons similarly-situated, known and unknown, Plaintiffs, v. SCOTT LABOR LLC, Scott Borre and the Form House, Inc., Defendants.

Scott Borre, an individual, Counter-Plaintiff, v. Denis Acosta, Counter-Defendant.

No. 05 C 2518.

United States District Court, N.D. Illinois, Eastern Division.

July 15, 2005.

Chirs Williams, Douglas M. Werman, The Law Offices of Douglas M. Werman, Chicago, IL, for Denis Acosta, Leticia Rosas, Irma Abrajan, Marcia De Jesus Garcia, Patricia Solano on behalf of themselves and other persons similarly situated, known and unknown, Plaintiffs.

Eugene K. Hollander, The Law Offices of Eugene K. Hollander, Chicago, IL, for Scott Labor LLC, Scott Borre, defendants.

Thomas G. Gardiner, Gardiner Koch & Weisberg, Chicago, IL, for Form House, Inc., defendant.

MEMORANDUM OPINION AND ORDER

GETTLEMAN, District Judge.

Plaintiffs filed a class action in the Circuit Court of Cook County, Chancery Division, alleging that defendants violated the Illinois Minimum Wage Law, 820 ILCS 105/1, et. seq., and the Illinois Wage Payment and Collection Act, 820 ILCS 115/1, et. seq. They allege that defendants failed to adequately pay them and other low-wage at-risk Hispanic workers, their earned overtime and other wages. Defendant Scott Borre ("counter-plaintiff") filed a counterclaim against plaintiff Acosta, asserting a state law claim for intrusion into seclusion. Counter-plaintiff alleges that Acosta videotaped him at work without his permission. Plaintiffs subsequently filed an amended complaint in state court which added a claim under the Fair Labor Standards Act, 29 U.S.C. 201, et seq. Defendants then removed the case to this court.

Counter-plaintiff seeks $50,000 in compensatory damages and $250,000 in punitive damages for his alleged mental anguish. Acosta has moved to dismiss the counter-plaintiff's claim pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons set forth below, Acosta's motion is granted.

FACTUAL SUMMARY

Counter-plaintiff alleges that in or about November or December, 2003, Acosta installed a hidden camera in the interior offices of Scott Labor, LLC, of which counter-plaintiff is a principal, and videotaped office personnel, including counter-plaintiff, without consent. On January 3, 2005, the video aired on the local nightly news as part of a segment concerning employment practices. Counter-plaintiff alleges that the video negatively portrayed him and his company, and was "greatly embarrassing."

Counter-plaintiff alleges that this videotaping was an intrusion into his seclusion because it "violated the trust built up" between employer and employee, and that the fear of being recorded undermined counter-plaintiff's ability to supervise his employees. He claims that his employment was a private matter and not for public consumption, and that he suffered "great mental anguish."

DISCUSSION

In ruling on a motion to dismiss for failure to state a claim, the court accepts the allegations of the complaint as true and views the facts in the light most favorable to the plaintiff. Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1428 (7th Cir.1996). A complaint should not be dismissed for failure to state a claim unless there is no doubt that the plaintiff cannot prove a set of facts that would entitle her to relief based on her claim. Pressalite Corp. v. Matsushita Elec. Corp. of Am., 2003 WL 1811530, at *2 (N.D.Ill. Apr.4, 2003).

It is unsettled whether the common law of Illinois recognizes the tort of intrusion upon seclusion of another. Muick v. Glenayre Elecs., 280 F.3d 741, 743 (7th Cir.2002). The Illinois Supreme Court has not expressly recognized the tort. Lovgren v. Citizens First Nat'l Bank, 126 Ill.2d 411, 416-19, 128 Ill.Dec. 542, 534 N.E.2d 987 (Ill.1989). The Seventh Circuit has acknowledged that intrusion upon the seclusion of another is "generally recognized," but declined to address whether the Illinois Supreme Court would recognize the tort. Muick, 280 F.3d at 744; see also Minter v. AAA Cook County Consolidation, Inc., 2004 WL 1630781, *6-7, 2004 U.S. Dist. LEXIS 13629, at *20 (N.D.Ill. July 19, 2004). In the instant case, this court need not address whether the tort is recognized in Illinois because, even if it does, counter-plaintiff has failed to allege sufficient facts to state a claim.

Illinois courts that recognize the tort have established that the elements of a cause of action for intrusion upon seclusion are: (1) an unauthorized intrusion or prying into the plaintiff's seclusion; (2) an intrusion that is offensive to a reasonable person; (3) the matter upon which the intrusion occurs is private; and (4) the intrusion causes anguish and suffering. Johnson v. K Mart Corp., 311 Ill.App.3d 573, 577, 243 Ill.Dec. 591, 723 N.E.2d 1192 (1st Dist.2000)(citing Melvin v. Burling, 141 Ill.App.3d 786, 789, 95 Ill.Dec. 919, 490 N.E.2d 1011 (3rd Dist.1986)). Although the Illinois Supreme Court has not recognized the tort, it has noted that the tort requires "some type of highly offensive prying into the physical boundaries or affairs of another person. The basis of the tort is not publication or publicity. Rather, the core of this tort is the offensive prying into the private domain of another." Lovgren, 126 Ill.2d at 417, 128 Ill.Dec. 542, 534 N.E.2d 987. Acosta argues that the counterclaim fails to sufficiently plead the second and third elements.

"If a plaintiff does not allege private facts, the other three elements of the tort need not be reached." Busse v. Motorola, Inc., 351 Ill.App.3d 67, 72, 286 Ill.Dec. 320, 813 N.E.2d 1013 (3rd Dist.2004). Examples of inherently "private facts" include "a person's financial, medical, or sexual life, or a peculiarly private fact of an intimate[,] personal nature." Green v. Chicago Tribune Co., 286 Ill.App.3d 1, 18, 221 Ill.Dec. 342, 675 N.E.2d 249 (1st Dist.1996)(Cahill J., dissenting). In contrast, matters of public record, such as a name, address, date of birth and fact of marriage have been held not to be private facts. See e.g. Busse, 351 Ill.App.3d at 72, 286 Ill.Dec. 320, 813 N.E.2d 1013 (holding a social security number is not private).

A plaintiff must also allege that he attempted to keep private facts private. "[P]ersons cannot reasonably maintain an expectation of privacy in that which they display openly." Vega-Rodriguez v. Puerto Rico Telephone Co., 110 F.3d 174, 181 (1st Cir.1997). In addition, it is of no moment whether the observation of openly displayed facts is accomplished by a video camera or the naked eye. Id. ("the mere fact that the observation is accomplished by a video camera rather than the naked eye" does not alter the privacy expectations of that area). The question, then, is whether counter-plaintiff in the instant case has alleged intrusion upon private facts in an area where he had a reasonable expectation of privacy.

Counter-plaintiff argues that employees have an interest in keeping certain facts private. In his response to the motion to dismiss, he cites three cases in support of this argument that certain facts in the employment context rise to the level of inherently private. K-Mart Corp. Store No. 7441 v. Trotti, 677 S.W.2d 632 (Tex.App.1984)(a search of private possession in an employee locker); Bodewig v. K-Mart, Inc., 635 P.2d 657 (1981)(a strip search of an employee); Acuff v. IBP, Inc., 77 F.Supp.2d 914, 921 (C.D.Ill.1999)(the videotaping of medical treatment in an office). All of these cases, however, are distinguishable. For example, in Acuff, an employer conducted video surveillance in an office to catch a suspected office thief. The court held that there was an invasion of patient's privacy because the camera also videotaped medical examinations that occurred in the office, and noted that, "There are few things in life that are more private than medical treatments and/or examinations." Id. at 924. Counter-plaintiff alleges that his employment at Scott Labor, LLC was a private matter and "not one for public consumption." The fact that he works at Scott Labor, LLC, however, is not highly personal and is not analogous to undergoing medical treatment or a strip search.

In addition to failing to plead inherently private facts, counter-plaintiff has not pled that he had an expectation of privacy in the area videotaped. Generally, the expectation of privacy in the employment context is not as strong as in the home. O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987); Vega-Rodriguez, 110 F.3d 174; United States v. Taketa, 923 F.2d 665 (9th Cir.1991). The Supreme Court has held that an employee's professed expectation of privacy must be assessed in the full context of the particular employment relationship. O'Connor, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987). Courts have interpreted O'Connor to mean that employees do not have a reasonable expectation of privacy in an open and undifferentiated work area. Vega-Rodriguez, 110 F.3d at 180. Factors affecting an employee's expectation of privacy in a given area of the office include: "whether the area was given over to an employee's exclusive use, ...the extent to which others had access to the work space, ...and whether office regulations placed employees on notice that certain areas were subject to employer intrusions." Id, at 179; Taketa, 923 F.2d 665 (an employee did not have a privacy interest in an office not given over to his exclusive use).

Courts have consistently held that videotaping a work area or office in an attempt to monitor workplace conduct is not a violation of privacy.² Vega-Rodrigu...