Acuff v. Ibp, Inc.

• Decision Date: 22 December 1999
• Docket Number: No. 97-4127.,97-4127.
• Citation: 77 F.Supp.2d 914
• Parties: Geri ACUFF, et al., Plaintiffs, v. IBP, INC., Defendant.
• Court: U.S. District Court — Central District of Illinois

77 F.Supp.2d 914

Geri ACUFF, et al., Plaintiffs, v. IBP, INC., Defendant.

No. 97-4127.

United States District Court, C.D. Illinois.

December 22, 1999.

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Robert K. Leyshon, Winstein, Kavensky & Wallace, Rock Island, IL, for Plaintiffs.

Arthur W. Eggers, James S. Zmuda, Califf & Harper, PC, Moline, IL, for Defendant.

ORDER

MIHM, District Judge.

This matter is before the Court on Defendant, IBP, Inc.'s ("IBP"), Motion for Summary Judgment. For the reasons stated herein, the Motion is GRANTED IN PART and DENIED IN PART. The parties' Motions for Oral Argument are DENIED.

I. Factual Background

Plaintiffs in this case claim that IBP intruded upon their seclusion when it allegedly surreptitiously videotaped Plaintiffs receiving medical treatment in the nurse manager's office ("NMO") at IBP's Joslin, Illinois, facility. Plaintiffs further claim that IBP violated several statutory provisions in the Illinois Compiled Statutes when it conducted its video surveillance of the NMO and request that this Court recognize implied rights of action under each of the statutes.

On or about October 15, 1997, Rick Nimrick ("Nimrick"), IBP's complex personnel manager at the Joslin facility, informed Glen Bote ("Bote"), an area security manager for IBP, that there was a problem with items disappearing from the NMO. Bote subsequently had security employees place a camera in the ceiling tiles of the NMO, and the camera began operating on October 15th. The camera was attached to a VCR, which when running would record whatever was captured on the camera. There is no evidence that the camera had audio capabilities. Additionally, there is no evidence that the camera was hooked up to a monitor for purposes of contemporaneous viewing.

The NMO constitutes a single room in the Health Services Department. Other rooms in the Health Services Department include an examination room, a common area, and a bathroom. IBP nurses work in the Health Services Department and provide healthcare at the workplace for employees. While the camera was in operation in the NMO, the nurses allegedly treated some patients in that room. According to IBP, when it installed the camera in the NMO, Nimrick, Bote, and the employees that installed the camera were unaware that employee examinations were taking place in the NMO.

On or about October 24, 1997, the camera captured an IBP employee going through a desk drawer in the NMO. The following day, the employee was shown the videotape of himself going through a desk drawer and was immediately terminated from his employment. After the employee was terminated, word spread quickly around the Joslin facility that IBP was conducting video surveillance in the NMO. According to IBP, the camera was out of operation as of October 25, 1997; however, it was not removed from above the ceiling tiles until October 29, 1997. According to Plaintiffs, there is sufficient evidence for a reasonable trier of fact to conclude that the camera continued running through October 29, 1997.

IBP has now moved for summary judgment on Plaintiffs' common law claims of intrusion upon seclusion and on claims that IBP violated various statutory provisions of the Illinois Compiled Statutes. Two Plaintiffs, Thomas Hoffman and Joseph Lannen, have previously been dismissed with prejudice from this action.

This Order follows.

II. Summary Judgment Standard

A motion for summary judgment will be granted where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). The moving party has the responsibility of informing the Court of portions of the record or affidavits that demonstrate the absence of a triable issue. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may meet its burden of showing an absence of material facts by demonstrating "that there is an absence of evidence to support the non-moving party's case." Id. at 323, 106 S.Ct. 2548. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Cain v. Lane, 857 F.2d 1139, 1142 (7th Cir.1988).

If the moving party meets its burden, the non-moving party then has the burden of presenting specific facts to show that there is a genuine issue of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Federal Rule of Civil Procedure 56(e) requires the non-moving party to go beyond the pleadings and produce evidence of a genuine issue of fact for trial. See Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. This Court must then determine whether there is a need for trial — whether, in other words, there are any genuine material factual issues that can properly be resolved only by a finder of fact because they may be reasonably resolved in favor of either party. See Anderson, 477 U.S. at 250, 106 S.Ct. 2505.

III. Discussion

A. Plaintiffs Who Facially Have Failed to Create a Disputed Issue of Material Fact

Before the Court begins its analysis of IBP's Motion for Summary Judgment and Plaintiffs' Response thereto, there is some housekeeping that must take place. Plaintiffs' counsel concedes in the Response that the following Plaintiffs cannot create a disputed issue of material fact regarding whether they were examined or treated in the NMO during the relevant time frame: (1) Aaron Youngberg; (2) Randy Vinson; (3) Servio Mercado; (4) Patsy Boyer; (5) Condillard Howard; and (6) Shari Myles. Accordingly, these six Plaintiffs are DISMISSED WITH PREJUDICE from this action.

Plaintiffs' counsel also concedes that Eric Taylor, Guy Thompson, and Debra Baker should be dismissed from the lawsuit because they cannot create a disputed issue of material fact. However, the Court is unable to dismiss these individuals from the lawsuit since they were never named as Plaintiffs in the Second Amended Complaint.

Lastly, the Court addresses Plaintiffs' counsel's contention that Julie Stearns ("Stearns") has created a disputed issue of material fact. This contention is problematic since Stearns was never named as a Plaintiff in the Second Amended Complaint. Therefore, whether Stearns could create a disputed issue of material fact is irrelevant.

Therefore, the only Plaintiffs who were named in the Second Amended Complaint and claim that there are disputed issues of material fact are: (1) Geri Acuff; (2) Fred McGee; (3) Cheryl Cowan; (4) Sharee Murphy; (5) Bobby Jo Barker; (6) Chris Liras; (7) Theresa Carbo; (8) Thomas Walls; (9) Myrna Rodriguez; (10) Blaz Rosales; (11) Florene Branham; (12) Myrna Ruiz; and (13) Candice Christianson.

B. Intrusion Upon Seclusion Claims

The Illinois Appellate Court is split among the First, Third, Fourth, and Fifth Districts on the issue of whether Illinois recognizes the tort of intrusion upon seclusion. See, e.g., Davis v. Temple, 284 Ill. App.3d 983, 220 Ill.Dec. 593, 673 N.E.2d 737, 744 (5th Dist.1996) (recognizing the cause of action, but affirming dismissal of claim on substantive grounds); Melvin v. Burling, 141 Ill.App.3d 786, 95 Ill.Dec. 919, 490 N.E.2d 1011, 1013 (3rd Dist.1986) (recognizing the cause of action); Kelly v. Franco, 72 Ill.App.3d 642, 28 Ill.Dec. 855, 391 N.E.2d 54, 57 (1st Dist.1979) (refusing to recognize the cause of action); Bureau of Credit Control v. Scott, 36 Ill.App.3d 1006, 345 N.E.2d 37, 40 (4th Dist.1976) (refusing to recognize the cause of action). It appears that the Second District has yet to address this issue. Furthermore, the Illinois Supreme Court has yet to be faced with a factual scenario requiring it to resolve the conflict among the district courts. See Lovgren v. Citizens First Nat'l Bank of Princeton, 126 Ill.2d 411, 128 Ill.Dec. 542, 534 N.E.2d 987, 989 (1989). Similarly, the Seventh Circuit has yet to be presented with a factual scenario requiring it to determine the law it believes the State's highest court would adopt were it to decide the issue. See Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1183-84 (7th Cir.1993).

IBP contends that this Court should not recognize the tort of intrusion upon seclusion, arguing that the Illinois Supreme Court would not recognize the tort if it were forced to resolve the conflict among the appellate districts. See Allen v. Transamerica Ins. Co., 128 F.3d 462, 466-67 (7th Cir.1997) (a federal court is to imagine itself as the state supreme court rather than an intermediate court of the state); Wood v. Allstate Ins. Co., 21 F.3d 741, 743-44 (7th Cir.1994) (same). IBP asserts that "the Illinois Supreme Court in Lovgren and the Seventh Circuit in Brazinski both have had opportunities to recognize the cause of action ... but failed to recognize such a valid cause of action in Illinois when confronted with the issue. ..." (Dft.Mem. at 15). However, IBP has overstated the precedential value of Lovgren and Brazinski. In Lovgren, the supreme court stated, "We do not find it necessary ... to resolve these differences [among the appellate districts]" because the alleged facts "[did] not satisfy the elements of [the] tort of unreasonable intrusion. ..." Lovgren, 128 Ill.Dec. 542, 534 N.E.2d at 989. Similarly, in the Seventh Circuit case of Brazinski, the court of appeals was not faced with a factual scenario that required it to decide whether the Illinois Supreme Court would recognize such a tort. See Brazinski, 6 F.3d at 1183-84. Therefore, contrary to IBP's argument, neither the Seventh Circuit nor the Illinois Supreme Court have rejected the tort of intrusion upon seclusion.

On the opposite end of the spectrum is Plaintiffs' argument why this Court should recognize the tort of intrusion upon seclusion. They proffer the following rhetorical question: "Had the [Lovgren court] not...